CR.A/18/2003 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 18 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= GADAJI MANAJI THAKOR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MS SHILPA R SHAH for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/18/2003 2/19 JUDGMENT Date : 03/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This Criminal Appeal under Sec.374 of the Code of Criminal Procedure ('the Code' for short) has been filed by the appellant-original accused, who has been convicted to suffer rigorous imprisonment for life and fine of Rs.500/-, in default, to suffer simple imprisonment for three months for the offence under Section 302 of the Indian Penal Code vide judgment and order of conviction dated 29.11.2002 delivered by the Learned Addition Sessions Judge, Fast Track Court, Patan in Sessions Case No.397 of 2002. 2.0 The case of the prosecution in short is that on 09.10.2000 at about 8:00 a.m., when the complainant was at his residence, he received phone call from one Ranubhai informing him that Bhikhaji is sick and, hence, he was instructed to reach Village : Der immediately. In pursuance of that, the complainant along with other family members had gone to Chadasana village, where they were informed that Bhikhaji is killed. Thereafter, they reached the scene of offence and saw the dead body of his CR.A/18/2003 3/19 JUDGMENT son lying on cot covered with blanket. At that time, his niece, Suryaba was also there. Upon seeing the dead body, they found the injuries on the neck, head and other parts of the body of the deceased. Upon making inquiry from Suryaba, she informed them that herself and Bhikhaji had gone to Village : Der at the residence of Gandaji, but none was present there and, hence, they had gone to the residence of Pathuji, where all family members were present and stayed for half an hour. Thereafter, Gandaji came to the residence of Pathuji and invited both of them for lunch, however, Bhikhaji said no, but ultimately, he agreed to take lunch. 2.1 Thereafter, they went to the house of Gandaji, where Gandaji and his brothers were present. After some time, quarrel took place between them, at that time, she was sitting very near to door. Thereafter, when her uncle was taking lunch, Gandaji gave 7 blows of wooden log on the neck of her uncle and, thereafter, he threw wooden log and took Kasai and gave 5 blows of it on the head. As a result of that, Bhikhaji fell down there. Immediately thereafter, she went to the house of Pathuji to inform him about the incident, but none CR.A/18/2003 4/19 JUDGMENT was there and, hence, she went to the house of Bhikhaji's father-in-law and informed them about the incident and stayed there. Today, in the morning, when she came back to see Bhikhaji then, she saw that Bhikhaji is lying on cot and he is no more. Here in the above facts from the Suryaba, the complainant went to Patan Taluka Police Station and lodged the complaint to that effect, which has been registered as I-C.R.No.230/2000 with Patan Taluka Police Station under Section 302 of the Indian Penal Code. 2.2 Thereafter, P.S.O. of Patan Taluka Police Station handed over the investigation to Police Inspector of Patan Taluka Police Station, Shri A.H. Jardosh. In pursuance of that, he started investigation into the matter. He sent yadi to Executive Magistrate for inquest on the body of the deceased and, thereafter, he went to Village : Der and visited the scene of offence. As it was an offence of visitation, he informed the superior officer. When the Executive Magistrate reached the scene of offence, inquest panchnama came to be drawn in the presence of panchas and, thereafter, he made arrangement for sending dead body for postmortem. CR.A/18/2003 5/19 JUDGMENT He drew panchnama of scene of offence in the presence of panchas, seized muddamal and recorded the statements of various witnesses. On production of the clothe of the deceased by the Police Constable, same were seized after following required procedure. Thereafter, he also made search of accused and arrested him after preparing arrest panchnama. Thereafter, the accused expressed his willingness to produce the muddamal alleged to have been used in the commission of offence. He therefore called the panchas and prepared primary panchnama and went in police jeep along with panchas, police personnel and accused. Thereafter, the accused asked to stop the vehicle at a place and he took out the muddamal Sikas and wooden log and handed over the same to police and, therefore, he completed the second part of the panchnama there itself. He sent all the muddamal to FSL for analysis and on receiving the FSL report and postmortem note, same were kept in investigation file. 2.3 Upon completion of investigation, he submitted the charge sheet against the accused in the Court of learned 2nd Joint Judicial Magistrate (First Class), CR.A/18/2003 6/19 JUDGMENT Patan. 2.4 As the offence alleged against the accused was exclusively triable by the Court of Sessions, the Learned 2nd Joint Judicial Magistrate (First Class), Patan committed the case to the Court of Sessions, Patan where it was numbered as Sessions Case No.397 of 2002 and transferred to the Court of Learned Additional Sessions Judge, Camp at Patan for trial. 3.0 On production of the accused, the learned Additional Sessions Judge framed charge against the accused vide Exh.1 on 11.06.2002. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 To prove the case against the accused, the prosecution examined 22 witnesses. The prosecution also placed reliance upon several documentary evidence 32 in numbering. 3.2 On submission of closing purshis by the prosecution, Learned Additional Sessions Judge recorded the further statement of the accused under Section 313 of the Code qua the incriminating question wherein the accused came out with the case of total denial. Thereafter, on hearing, the Learned Addition Sessions Judge, Fast Track Court, CR.A/18/2003 7/19 JUDGMENT Patan, delivered the impugned judgment, which gave rise to prefer this Criminal Appeal. 4.0 Heard learned Counsel for the appellant-accused, Ms.Shilpa R. Shah and learned APP, Mr.H.L. Jani for the State. 5.0 It has been mainly argued by the learned counsel for the appellant-accused, Ms.Shah that the prosecution has failed to prove the guilt against the accused beyond reasonable doubt. It has been argued that the prosecution has only placed reliance upon the evidence of child witness viz., Suryaba, who was aged about 11 years at the time of incident. 5.1 After taking us through the evidence of Suryaba, it is argued that her evidence is not trustworthy, not believable and not free from doubt. It is argued that as the child, Suryaba is not the witness of incident, her conduct is also required to be kept in mind. It has been argued that it is true that if the evidence of said child witness is believable, free from doubt and trustworthy then the Court can certainly rely upon and convict the appellant- accused, but here in this case, her evidence is not trustworthy. As per the evidence on record, there CR.A/18/2003 8/19 JUDGMENT are 50 houses adjacent to each other and said place is known as Thakor Madh and after the house of Gandaji, there is adjoining house of Manaji, house of Pathuji. It has been argued that the incident has taken place in broad day light at about 14:30 hours and, therefore, it is very difficult to accept the say of the prosecution that none came out from any house though incident has taken place in front of their house. Not only that, according to her, if we believe the evidence of Suryaba and other then though 24 hours have passed and though third house is the house of father-in-law of the deceased, nobody has taken care of deceased that too also the wife of the deceased was also there. It has been argued that, therefore, evidence of Suryaba creates doubt in the mind of all concerned. 5.2 After taking us through the evidence of Suryaba, she has argued that she was not present at the time of incident as she has categorically stated that she had taken lunch at the residence of Manaji, the father of accused and, thereafter, there is no evidence on her part that she went to the house of Gandaji along with her maternal uncle and, therefore, according to her, her evidence is not CR.A/18/2003 9/19 JUDGMENT free from doubt. 5.3 Simultaneously, she has also taken us through the oral evidence of complainant and other witnesses and argued that all other witnesses are not the witnesses of incident and practically, none has supported the prosecution case. 5.4 She has also taken us through the evidence of Chakiben, wife of the deceased and argued that she has categorically deposed in her evidence that after the incident, they came to know about the incident, however, she did not go there. She has also stated that Suryaba informed that the deceased was killed by Gandaji by giving blow of wooden log and sikas. Showing the same, it has been argued that in this circumstance, the evidence of child witness, Suryaba that nobody came to save Bhikhaji for 24 hours from 2:00 p.m. to 11:00 a.m. of next day is not required to be believed. 5.5 She has also taken us through the oral evidence of P.W.No.15, Dr.Amrutbhai Vihabhai Patel, Exh.29, who has performed the postmortem and argued that in para 5 of his evidence, there is no evidence worth the name to the effect that the injuries received by the deceased were sufficient to cause death. CR.A/18/2003 10/19 JUDGMENT 5.6 Lastly, it has been argued that at the most, it is an incident which even as per the say of the prosecution, has taken place after the altercation between the parties and both were in drunken condition and, therefore, it is required to be considered as a result of sudden provocation and in any circumstances of the matter, it cannot be said that it is a case falling under Section 302 of the Indian Penal Code. 5.7 Ms.Shah has also drawn our attention that the accused has already undergone more than 8 years and, hence, some sympathy should be shown towards the accused. 6.0 Learned APP, Mr.H.L. Jani, has also taken us through the oral evidence of witnesses, upon which, reliance has been placed by the learned counsel for the appellant-accused, Ms.Shah. 6.1 Mr.Jani has objected the submissions made by the learned counsel, Ms.Shah mainly on the ground that the oral evidence of child witness, Suryaba is trustworthy and is required to be believed, but on a material point, he has no answer regarding her conduct and also regarding her presence at the time of incident. He has also argued that the Court can CR.A/18/2003 11/19 JUDGMENT certainly rely upon the oral evidence of child witness as the same is trustworthy, free from doubt and believable. After taking us through the oral evidence of Suryaba, it is submitted that she is the witness of incident and her evidence is required to be believed and it is a serious offence, wherein the present deceased has been invited and killed by Gandaji and, therefore, according to him, no lenient view is required to be shown towards the appellant-accused. 7.0 We have gone through the oral as well as documentary evidence shown to us by the learned counsel for the respective parties together with the reasoned judgment delivered by the court below. 7.1 Here in this case, only evidence of child witness, Suryaba (P.W.No.2, Exh.7) is required to be taken into consideration. At the time of recording her evidence, she was 13 years and her evidence is recorded in the month of July, 2002 and the incident has taken place in the year 2000 and, therefore, at the time of incident, she was 11 years. It is required to be noted that she is the child witness and she claims herself to be a witness of incident and, hence, her evidence is CR.A/18/2003 12/19 JUDGMENT required to be scrutinized minutely and after evaluating the same, if the Court comes to a conclusion that her evidence is trustworthy then certainly, the Court can rely upon and convict the accused only on the basis said evidence. For the purpose of deciding this appeal, we have minutely evaluated the evidence of Suryaba. 7.2 It is established from her evidence that she and her maternal uncle, Bhikhaji went to Village : Der at the residence of Gandaji, at that time, it was 12:00 a.m., however, none was there and, therefore, they went to the house of Pathuji, who is the father-in-law of Bhikhaji, where they stayed for half an hour. Meanwhile, Gandaji came and invited them and, thereafter, they went to the house of Manaji, which is also adjoining of Gandaji and she stayed. She also deposed that when Gandaji and Bhikhaji went to market, she took her lunch at the house of Manaji and, thereafter, she was playing with the daughter of her maternal uncle, Sajjan. Thereafter, Gandaji and Bhikhaji came there and after some time, altercation took place between them and at the time of taking lunch, Gandaji gave 7 blows of wooden log on the neck of the deceased, CR.A/18/2003 13/19 JUDGMENT Bhikhaji and, thereafter, he threw said wooden log and took up Sikas and gave 5 blows of it on the head of Bhikhaji and, thereafter, he dragged him out side the house. Immediately thereafter, she went to the house of Pathuji, but nobody was there at that time and, therefore, she came back and, thereafter, stayed at the residence of Manaji for some time and, thereafter, she stayed at the residence of Vinuji and on the next day, she came back along with Vinuji and saw that Bhikhaji was lying on cot and Vinubhai informed Pathuji regarding illness of Bhikhaji. In turn, Pathuji informed Ranuji and Ranuji informed Sihori by phone at the place of Bhikhaji to his father. She has further deposed that thereafter at 11:00 a.m., maternal grand father came there along with other people and, thereafter, grand maternal father went to Police Station and lodged the complaint. She also identified muddamal Sikas into the Court as also the appellant-accused. 7.3 Aforesaid witness was also examined by the learned advocate before the Court below. In her cross- examination, she admitted that there was an altercation between the deceased Bhikhaji and his CR.A/18/2003 14/19 JUDGMENT wife, Var Chakibhai and, therefore, Chakiben was staying at her parental home at Village : Der. She admitted that the house of Pathuji is also situated in Village : Der and in the same Maholla along with 50 other houses, however, she denied that adjoining house of Pathuji is the house of Manaji, but she admitted that Manaji's house is at a little bit distance. She also admitted that she shouted for help, but nobody came to rescue, thereafter, she went to the house of Pathuji and stayed there for half an hour, however, she has not said anything regarding the incident to anybody on that day. Thereafter, she went to the house of Vinubhai and slept there. On the next day early in the morning, she came back to see her maternal uncle, Bhikhaji and, thereafter, she seat there till complainant and other came there at 11:00 a.m. She has also admitted that Police recorded her statement after eight days at Sihori. 7.4 Thus, as per her evidence, she claims herself to be a witness of incident, who was aged about 11 years at the time of incident. 7.5 It is required to be noted that the place of incident is the house of Gandaji and adjoining CR.A/18/2003 15/19 JUDGMENT house is of father of Gandaji viz., Manaji and next house is of Pathuji. It is to be noted that the incident has taken place at 2:30 p.m. and as per evidence on record, there are 50 houses situated adjoining to each other and all are from same community. It is evident from the evidence on record that though the deceased was assaulted and though Suryaba shouted for help, none came to rescue the deceased. Not only that, nobody reached the scene of offence until 24 hours and before the father of the deceased comes. 7.6 P.W.No.19, Varbai @ Chakiben Bhikhuji, Exh.35 who is wife of the deceased has admitted that she came to know about the incident on the same day and also came to know that her husband has succumbed to the injuries. She also admitted that Suryaben came to her house and informed them about the incident, at that time, her father, mother and other family members were present. She has also admitted that there are 50 house in Village : Der and her father is a leader of party. As against this, it is to be noted that Suryaba has already deposed that she has not informed anybody till 11:00 of next morning till her maternal grand father and others came. CR.A/18/2003 16/19 JUDGMENT 7.7 As against this, the complainant is not the witness of incident as he was informed by Suryaba about the incident. 7.8 Thus, in short, as per the evidence of Suryaba, she has not informed even Vinubhai, where she stayed whole night, not even Manaji or Pathuji or Bachiben. Over and above this, though the incident has taken on broad day light, though all are related to each other, though his wife was also there in next door and though dead body was lying there in front of the house of Gandaji, nobody has taken care to see the deceased, which creates doubt in the mind of the Court. 7.9 Suryaba deposed that she is much more mature, but her aged is such and with this, whether one can act way in which, she did i.e. she stated that her maternal uncle is no more and he succumbed to the injuries and, thereafter, she seat down there for a considerable time. Not only that, though shouted, none came to help her, which creates doubt in the mind of all concerned as to whether she was there at the time of incident or not. Simultaneously, if she was there, whether she was present at the time of incident or not because as per her evidence, she CR.A/18/2003 17/19 JUDGMENT was playing with the daughter of Bhikhaji at the residence of Manaji and, therefore, her claim that she is the witness of incident also creates doubt. 7.10 Over and above, in her evidence, there are exaggeration to that effect that Gandaji has given seven blows of wooden log on neck of the deceased and eight Sikas blow on head and that too also, first he gave wooden log then threw wooden log, took Sikas and gave 5 blows of it to the deceased. However, medical evidence is contrary to the evidence of child witness, Suryaba as there are no injuries of Sikas. Not only that as per the evidence of doctor, who has performed postmortem, there are only three injuries out of which, two fracture and one is on back side and, therefore, her deposition to the effect that accused has given seven blows to the deceased is exaggerated or we can say that it is concocted one. Even doctor has not opined that the injuries received by the deceased are sufficient to cause death in ordinary course of nature. However, we accept that there are no evidence which connected the accused with the crime and on detailed scrutiny of the evidence of the child witness, we are of the opinion that her CR.A/18/2003 18/19 JUDGMENT evidence is not trustworthy and not free from doubt and, therefore, the conviction on the basis of only on her evidence resulted into injustice to the accused and as the evidence of Suryaba creates doubt, we give the accused the benefit of doubt. 7.11 The prosecution has failed to prove the discovery panchnama as the muddamal, which have been found on public place and same were easily available to all concerned. Over and above this, the prosecution has not produced both weapons into the Court. 7.12 Over and above, the appellant-accused has already undergone more than eight years of sentence and, hence, we are of the opinion that if we give benefit of doubt, it will meet the ends of justice. 7.13 As far as the homicidal death is concerned, same has not been disputed by the learned counsel for appellant-accused. Then also, we have gone through the same and it is proved by the prosecution by way of oral evidence of Dr.Amratbhai Vihabhai Patel, P.W.No.15, Exh.29. Through him, the prosecution has also proved the P.M.Note Exh.30. 7.14 It is true that it is a heinous crime, but looking to the facts and circumstances of the case and keeping in mind the above aspect of the matter, CR.A/18/2003 19/19 JUDGMENT there is no evidence worth the name to connect the accused with the crime in question and, hence, the benefit of doubt is required to be given to him. 8.0 In the result, the appeal is allowed. Judgment and Order of conviction and sentence dated 29.11.2002 delivered by the Learned Additional Sessions Judge, Fast Track Court, Patan in Sessions Case No.397 of 2002 are quashed and set aside. He is, therefore, ordered to be set at liberty forthwith, if not required in any other offence. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil