CR.A/632/2000 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 632 of 2000 With CRIMINAL APPEAL No. 776 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= JAYENDRA KANTILAL RAICHURA @ JAYLO TINI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 632 of 2000 MR Yogesh Lakhani, ld. sr. counsel with Mr. YATIN SONI for Appellant(s) : 1, Ms. Mita S. Panchal, APP, for the respondent State. Criminal Appeal No. 776 of 2000 Ms. Mita Panchal, ld. APP, for the appellant State Mr. Y.S. Lakhani, ld. sr. counsel with Mr. A.G. Pot, for respondent No. 1 and 3 Appeal abated – resp. No. 2 Res. No. 4 unserved ========================================================= CR.A/632/2000 2/6 JUDGMENT CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 28/11/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeals are filed against the judgement and order passed by the learned Additional Sessions Judge, Junagadh, in Sessions Case No. 99 of 1996. Appeal No. 632 of 2000 is filed by original accused No. 1 against conviction and sentence. Appeal No. 776 of 2000 is filed by the State against the acquittal of the accused. 2. Heard learned counsel for the parties. The prosecution story is that deceased Bhavan used to inspect the Octroi Posts as he was the Head of the Octroi Department of the Municipal Corporation. On a fateful day at about 12.15 p.m. he had reached the scene of occurrence accompanied accompanied by 7 other persons. There, it is stated that 3 accused persons came on motorcycle and caused injury to the deceased by dagger or dagger like weapons. In a further improvement, the prosecution came with prosecution case that apart from motorcycle, there was also scooter on which two persons came, in all making 5 accused persons. Accused No. 1 was convicted and 4 accused were acquitted by the learned trial Judge. CR.A/632/2000 3/6 JUDGMENT 3. The convicted accused being aggrieved by the conviction has filed Criminal Appeal No. 632 of 2000 and the State being aggrieved by the acquittal of the accused filed Criminal Appeal No. 776 of 2000. These appeals are being decided by this common judgement. 4. The learned counsel for the appellant -accused assailing the conviction has stated that the deceased is said to be accompanied by Karsan Bhavan, PW – 3, son of the deceased. He is the only eye witness who has supported the prosecution case. At the time of incident, the deceased and Karsan Bhavan were present. Naturally, in the state of affairs, when his father was hurt, he should have gone to the hospital along with the body of his father and it is this point of time which causes the first lacuna in the prosecution case that the Head-constable posted at the hospital records the incident without naming any of the accused persons in the report. That makes the prosecution case doubtful. 5. Apart from this big lacuna which is a written record, the other evidence which makes the prosecution case doubtful is that the reason of PW-3 Karsan being with his father is that his father was said to be suffering from disease. In cross- examination when it was put to him as to what disease was his father suffering, he never knew what was the disease his father was suffering. Thus, the very reason of his presence with the father falls to the ground. 6. This witness was further cross-examined and he was asked does he know the procedure how is the money collected in the octroi post. This witness replied in the negative and thus CR.A/632/2000 4/6 JUDGMENT making his presence doubtful. 7. This witness was further asked whether he has ever accompanied his father apart from this cause. His answer was that he had never accompanied his father earlier on such occasion. Thus what appears in absence of the names of the accused persons in the first information report which was recorded by the Head-constable at hospital at 1.30 p.m. is when no name of the accused was shown in the report at that time the accused were not known to the prosecution and it was subsequently between 2.15 and 4.15 p.m. that the names of the accused were incorporated in the FIR. This incorporation is further damaged by the conduct of the eye witness PW-3 Karsan when he refuses to name accused No. 1 and 4 other acquitted accused persons. It is stated that this witness came to know them only after reaching. Therefore, no source is indicated by him. This shows that this witness was not a fully reliable witness. There is no material available on record to corroborate this witness and there are serious lacuna in the testimony of this witness. If this eye witness is not fully reliable then his testimony cannot be made the base of conviction. Unless his testimony inspires confidence, no conviction can be recorded on the basis of testimony of such eye witness. Even according to the best case of the prosecution, three persons assaulted the deceased by dagger or dagger like weapons. The weapon recovered from the accused is blade of `Bala' which is not a weapon assigned to anyone of the accused persons by this witness. `Bala' is distinct weapon from that churry or churry like, dagger or dagger like weapons. Therefore, the recovery of blade of `Bala' is of no consequence as far as complicity of accused No. 1 is concerned. CR.A/632/2000 5/6 JUDGMENT 8. As far as 4 acquitted accused are concerned, learned counsel for the acquitted accused submitted that the witness had not named these accused in the first report. If they were not named in the FIR, their names were not found. Admittedly, the eye witness had known the name of these accused only after hearing home. No identification parade was held because these acquitted accused persons were not known to the witness before. Only he had known them after reaching home. 9. Per contra learned APP submitted that there may be some mistake in showing that it was a churry like weapon but nonetheless a blade of `Bala” is distinct from that of churry or churry like weapon. That being the position, there is corroboration available regarding the blade being there. The presence of the accused has also been narrated by the witness Karsan. The other witnesses have turned hostile. Therefore, the conviction is based on the evidence of witness Karsan. 10. We have considered the facts. We are of the considered view that if the prosecution is taken to its entirety as has been understood by the learned trial Judge that it is the presence of accused No. 1 and nothing more than that, has been established by the testimony of the eye witness, as aforesaid, has not been established because the weapon assigned to him is not a weapon recovered from the accused and in that background when we are examining the entire case of prosecution and going to the first report which was recorded by the Head-constable where his name was not there, a doubt arose. Further presence of Karsan PW-3 becomes doubtful CR.A/632/2000 6/6 JUDGMENT because his reason being with his father was that his father was suffering from disease and he never knew as to what disease his father was suffering. He was not able to give the process of income collected from octroi. Further apart from this cause, on no other occasion he was with his father. Thus, there is a reasonable doubt whether witness Karsan was there at the time of incident. This witness refuses to specify four acquitted accused persons. When he was in rush to implicate those four accused persons, then there is no corroborative evidence on record. It is in the circumstances that accused No. 1 was transferred recently that his name has cropped up as probable accused and on this probability it is not possible to sustain the conviction. The conviction as recorded by the trial Court is liable to be unsustainable as far as accused No. 1 is concerned. He is acquitted of the charges levelled against him. Consequently, his conviction and sentence are set aside. The appeal filed by the State against acquittal of the other accused persons deserves to be dismissed because there is no evidence on record to convict four acquitted persons. 11. In the result, appeal filed by the appellant-accused Jayendra Kantilal Raichura @ Jaylo Tini is accepted. He is acquitted of the charges levelled against him. His conviction and sentence are set aside. He is behind the bars. He is ordered to be released forthwith if not required in any other case. The appeal filed by the State i.e. Criminal Appeal No. 776 of 2000 is dismissed. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)