CR.A/1238/2003 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1238 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= SANTOSH VASANTBHAI GODSE - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS TEJAL K. SHAH WITH MS ROOPAL R PATEL for Appellant(s) MR PD BHATE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 12/03/2008 ORAL JUDGMENT Appellant is the original accused who was charged with offence punishable under section 307 of the Indian Penal Code for having caused injuries to CR.A/1238/2003 2/11 JUDGMENT one Kishan Jatanbhai Nagrade on 24th October 1997. 2. The learned additional Sessions Judge, Surat by his impugned judgment and order dated 24th September 2003 in Sessions Case No.69/99 convicted the appellant for the said offence and sentenced him to simple imprisonment for 5 years and also imposed fine of Rs.250/-. 3. As per the prosecution case, late at night on 24th October 1997, when injured Kishan was sleeping in open area in front of his hut, the accused hit him on his head with a heavy stone and caused serious injuries to him. The injured was shifted to Maskati hospital by his wife and other relatives. 4. PW-1, Bhikhiben, sister of the injured was examined at Ex.12. She was residing in the same locality as her brother. According to her deposition, the incident took place at about 2.30 at night in front of house of Kishan. Since Kishan was unwell on that day, he was sleeping outside his house in the open, the accused hit him with a heavy stone rendering him unconscious. The witness was at her home at that time. She was called by the policeman. She, therefore, immediately went to the house of Kishan and found that he was injured on his head and he was unconscious. She, Kishan's wife, Bebabai and Kishan's mother Rambaben took Kishan to Maskati hospital in a rickshaw. She stated that Kishan and the accused had a quarrel some 8 days before the CR.A/1238/2003 3/11 JUDGMENT incident about the children. On account of this quarrel, the accused had given a blow to Kishan when he was sleeping. She also stated that the accused used to say that he would beat up Kishan at any cost. She, however, stated that she was informed by her sister-in-law Bebabai that accused had hit Kishan with a stone. She stated that Kishan was admitted in Maskati hospital for about 8 days. In her cross-examination, this witness admitted that when the incident took place, she was at home and upon being called by the police, she went to Kishan's house. She admitted that in her police statement, she had not stated about the previous quarrel between Kishan and the accused. She also admitted that regarding threats given by the accused also she had not stated anything in her police statement. The witness also admitted that Kishan was in the habit of drinking liquor and on the night of the incident, he had a quarrel with his wife and after taking liquor had gone to sleep outside. 5. Bebabai, PW-2, Ex.13, is the wife of Kishan. She claims to be an eye-witness to the incident. In her deposition, she stated that on the night of the incident, her husband's health was not good. He was feeling uneasy. He was, therefore, sleeping in an open area on the road opposite to her house. At that time, she was putting her children to sleep. She was awake. The accused had come there and hit her husband on the head with a heavy stone. Her husband CR.A/1238/2003 4/11 JUDGMENT had lost consciousness immediately. Previously, Kishan and the accused had a quarrel about the children and the accused had threatened that he would finish Kishan. She was, therefore, scared and was coming out of the house every now and then to see her husband. When the incident took place, she had just come out. Immediately, the accused had dropped a stone on the head of Kishan and thereafter run away. Thereafter many people had gathered around. She had called her sister-in-law and mother-in-law and they had together taken Kishan to hospital. In the cross-examination, the witness stated that the incident took place at about 2 O' clock in the night. She admitted that her husband was used to taking liquor. It was suggested to her that since construction work was going on in front of her house and bricks, cement, etc. were lying there, it was not possible for her to see her husband from her house. The suggestion, was however, denied by her. She, however, admitted that in her police statement, she had not referred to the previous quarrel between Kishan and the accused nor had she stated about the threats given by the accused to her husband. She stated that the accused had come along with one of his friends. She denied that when the incident took place, she was sleeping and woke up only after hearing shouts. She denied that her husband had fallen down after consuming liquor and that is how he got injured. CR.A/1238/2003 5/11 JUDGMENT 6. Injured Kishan was examined at Ex.15 as PW- 3. He stated that couple of days before the incident, he had a quarrel with the accused regarding children. He had, however, tried to pacify the accused. He stated that he was hit on the head by a stone, but admitted that she did not know who had caused the injury. In his cross-examination, he admitted that in his police statement, he had not mentioned about the previous quarrel with the accused. He denied that under the influence of liquor, he had fallen down and thereby suffered injury. 7. PW-4, Rambaben, Ex.16 is the mother of Kishan. She had also reached the spot after the incident had taken place and was not an eye-witness. 8. One Dipakbhai, PW-5, Ex.17 had turned hostile and had not supported the prosecution case before the Court. 9. Dr.Ashok Kumar Gajjar, PW-6, Ex.23 was the doctor who had treated Kishan on the night of the incident. In his deposition, he stated that Kishan was brought to him by his wife at about 1.55 at night on 25.10.07. They had come without police yadi. Significantly, he stated that Kishan was conscious at that time. He was given the history that Kishan was hit by stone by someone, which he had noted down in his case papers. He had found that Kishan had one CR.A/1238/2003 6/11 JUDGMENT CLW of 6“ x 2 “ x 1” on the head near his right ear. He could see the skull bone and blood stains there. He had also noticed another injury on the forehead. He stated that the injured left the hospital without being discharged at night of 29th October 1997. In his opinion, the injuries could have been caused by a sharp edged weapon or stone having sharp edges. He, however, stated that to cause such injuries, stone had to be dropped from a very small distance since any heavy stone dropped from hight would cause skull fracture which was not found in the case of the injured. He also stated that both the injuries could not have been caused by one single blow of a stone. He was also of the opinion that neither of the injuries were life threatening and even if immediate treatment was not available could not have caused death. In the cross-examination, he was shown the muddamal article stone allegedly used for causing the injury. He stated that if such a stone is dropped even from a hight of 2 feet, it is likely to cause fracture. He agreed to the suggestion that if a person under the influence of liquor tumbled and fell on the stone shown to him, such injuries could have been caused. He also agreed that if a person while running were to fall down and hit against the stone, such injuries could have been possible. 10. Chandansinh Sisodia, PW-10, Ex.34, was the I.O. who had carried out the investigation. From the CR.A/1238/2003 7/11 JUDGMENT panchnana recording collection of muddamal articles, particularly, stone allegedly used for commission of offence, it can be seen that the stone was weighing about 25 kgs. 11. On the basis of the above evidence, the prosecution sought to drive home the charge. 12. Having heard the learned advocates appearing for the parties and having perused the evidence on record, I find that to prove the entire incident, the prosecution produced only one eye-witness. All other witnesses admittedly had not personally witnessed the incident. PW-1, Bhikhiben as well as PW-4, Rambaben clearly admitted that they were neither present nor had witnessed the incident, but had rushed to the spot shortly thereafter upon being summoned. The injured witness Kishan himself was sleeping when he received injuries. He also stated that only upon being told by his wife that he was hit by the accused that he know to know how he received injuries. 13. Under the circumstances, the entire case hinges on the reliability of PW-2, Bebabai, Ex.13. As already noted, she is the wife of injured Kishan. She claims to have seen the incident when she had come out of the house worrying about the safety of her husband who was sleeping opposite to her house in the open. She stated that she was worried for his safety because of the reason of quarrel Kishan had CR.A/1238/2003 8/11 JUDGMENT with the accused and the threats the accused had given to Kishan. 14. One may, however, notice that about the recent quarrel between Kishan and the accused, though consistently all witnesses, namely Bhikhiben, PW-1, Bebabai, PW-2, and Kishan himself, PW-3, had mentioned in their depositions before the Court, admittedly, in their police statements they had not given any such account. Even with respect to the accused having previously threatened Kishan, admittedly, such version was never put forth by the witnesses in their statements before the police. Thus there is clear improvement in the versions of different witnesses with respect to the quarrel between the accused and Kishan and the accused having given threats to Kishan pursuant to such a quarrel. 15. Additionally, I may also find that as per Bebabai, the incident took place at about 1.30 at night. She was otherwise sleeping in her house and admittedly not sleeping next to her husband. It is extremely difficult to believe her version of having ventured out of her house at the exact time when the accused happened to assault Kishan with a stone. I also find that the witnesses, particularly, PW-1, Bhikhiben and PW-2, Bebabai had admitted that Kishen was in the habit of consuming liquor. In fact, PW-1, Bhikhiben clearly stated that on the very night of the incident, Kishan had an argument with his wife and after taking liquor had gone out of the house to CR.A/1238/2003 9/11 JUDGMENT sleep in the open area near the road. Thus the possibility of Kishen having lost balance and tumbled upon and hit his head on the stone is also probablised by the defence. 16. Evidence of Dr.Ashok Kumar Gajjar, PW-6, Ex.23 is also significant in this regard. He stated that Kishan was brought to his hospital at about 1.55 at night. At that time, the injured was conscious. This is a departure from the deposition of all other witnesses, namely, Bhikhiben, PW-1, Bebabai, PW-2, Rambaben, PW-4 and even Kishen himself, PW-3. Additionally, the doctor also stated that while giving history it was told to him that Kishan was hit by stone by someone. Though admittedly Bebabai was present and as per the doctor history was given by Bebabai herself, she did not disclose that her husband was attacked by the accused. Even the nature of injuries noted by the doctor creates further doubt about the incident. As per the doctor,the injured had not suffered any fracture. He stated that if the muddamal article was dropped on the head of a person from even a small distance, the same would result into skull fracture. As noted earlier, panchnama shows that the stone was weighing about 25 kgs. Obviously, if such a stone is dropped on the head of human being, the same would cause extensive and serious injuries. The doctor was also of the opinion that two injuries noted by him could not have been caused by one single blow by stone. He agreed that the injuries could be caused if a person under the CR.A/1238/2003 10/11 JUDGMENT influence of alcohol were to tumble and hit his head against such a stone. 17. Considering the above aspects of the matter, I find that to base conviction of the appellant, original-accused, on the strength of the sole eye-witness account would be highly unsafe. As noted, I find that there are large number of discrepancies and contradictions in the prosecution version. There has been a systematic attempt to improve the version before the Court by all the witnesses. The version of the eye-witness account does not get corroboration from the medical evidence. Her own version is otherwise highly improbable. The possibility of Kishen having under the influence of liquor tumbled and hit himself against the stone also cannot be completely ruled out. This in fact is in consonance with the opinion of the doctor. Both the injuries noticed by him could not have been caused by one single blow of stone. The fact that wife of the injured not stating the name of the accused while giving history to the doctor is also significant. 18. Considering all these aspects of the matter, I am of the opinion that the learned Trial Judge committed an error in convicting the appellant for offence punishable under section 307 of the Indian Penal Code. 19. The appeal succeeds. Conviction and sentence CR.A/1238/2003 11/11 JUDGMENT of the accused-appellant is set aside. The appellant is acquitted of the charges. He is ordered to be released forthwith if not required in any other criminal case. The appeal is disposed of accordingly. (Akil Kureshi, J.) (vjn)