CR.A/1181/2007 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1181 of 2007 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 ? ========================================================= FARSHURAM HIRALAL KUBAVAT BAVAJI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MS AMRITA AJMERA for Appellant(s) : 1 - 3. MR BHATE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 23/04/2008 ORAL JUDGMENT 1. Appellants are the original accused who were charged for offences punishable under Sections 323, CR.A/1181/2007 2/19 JUDGMENT 324, 302, read with Section 114 of Indian Penal Code. 2. By the impugned judgment and order dated 24.8.2007 passed by learned Additional Sessions Judge, Limdi in Sessions Case No.51 of 2006, appellant No.1 original accused No.1 was convicted for offence punishable under Section 304-part II and sentenced to R.I. for 6 years and fine of Rs.30,000/-. Appellant Nos.2 & 3, original accused Nos.2 and 3 respectively were convicted for offences punishable under Sections 323, read with Section 114 and sentenced to R.I. for 1 year and imposed fine of Rs.1,000/- each. 3. As per charge Exh.12, it was alleged that on 28.4.2006 at about 7.30 in the evening hours when the wife of accused No.3 was working outside her house, daughter of the complainant made fun of her. This led to a quarrel pursuant to which the accused attacked the complainant and his father. Accused No.2, Ghanshyam, gave blow with a bat on the head of the complainant Chamanbhai. Accused No.3, Kishor, also gave blows to the complainant with Hockey Stick. Accused No.1, Farshuram, gave blows to the deceased CR.A/1181/2007 3/19 JUDGMENT Bhikhabhai, father of the complainant on the head with a stick causing his death. 4. At the outset, it may be noted that virtually all witnesses including the complainant turned hostile. Though in the complaint and the statement before the Police, the complainant and the other witnesses had stated that it was accused No.1, Farshuram, who had given blows on the head of Bhikhabhai with a stick, before the Court, most of the witnesses did not support this version and some of them tried to suggest that the vital blow was given by accused No.2 i.e. Ghanshyambhai. From the available material on record, it is, therefore, required to be examined whether the learned Additional Sessions Judge, was justified in convicting the appellant- original accused No.1, Farshuram, for offence punishable under Section 304 part-II and for convicting other accused for offences under Section 323 read with Section 114 of IPC. 5. PW-1, Dr.Tapan Mehta, was examined at Exh.17. He had carried out postmortem of the dead CR.A/1181/2007 4/19 JUDGMENT body of deceased Bhikhabhai. He had noticed several injuries. He had found multiple abrasions with contusions on left frontal region. He had also found multiple small red abrasions with contusions on the left side of the parietal region. He had also found fracture and depression on the scalp. He had found swelling on the brain. In his opinion, death occurred due to shock resulting from the head injury. He stated that the injuries were independently sufficient in ordinary course to cause death. He opined that even if immediate treatment was made available, the patient would not have survived. 6. Dr.Jayesh Gandhi, PW-2, Exh.24 was the Doctor to whom Chamanbhai as well as Bhikhabhai were brought initially. He had examined Chamanbhai and noted the history of receiving injuries through beating. He had found CLW on the forehead, he had admitted Chamanbhai as an indoor patient. 7. Complainant-Chamanbhai Bhikhabhai was examined at PW-3, Exh.27. He stated that pursuant to a quarrel, Kishor, accused No.3 and Farshuram accused CR.A/1181/2007 5/19 JUDGMENT No.1 had given blows to him. He also stated that Ghanshyam accused No.2 had also given blow to him with a bat on his head. Significantly he stated that it was accused No.2, Ghanshyam who had hit his father, Bhikhabhai on the back of his head twice. He specifically stated that no one else had given any blow to his father. He was treated as an indoor patient in the hospital of Dr.Jayesh Gandhi for seven days. 7.1 He was declared a hostile witness and permitted to be cross-examined by the learned APP. He disowned his statement made before the Police wherein he had stated that it was Farshuram, accused No.1, who had given blows to his father on the head. 8. PW-4, Manishaben was examined at Exh.39. She is daughter of complainant Chamanbhai. She stated that Ghanshyam, accused No.-2, had given blow with the bat to his father i.e. Chamanbhai. Ghanshyam also gave blows with the bat to Bhikhabhai. Farshuram had a stick, but had not given any blows to anyone. CR.A/1181/2007 6/19 JUDGMENT 8.1 She was also declared hostile. 9. PW-5 Manjuaben Chamanbhai, Exh.40 is wife of Chamanbhai. She stated that Ghanshyam accused No.2 had given blow on the head of her husband with the bat. Kishor, accused No.3, had given hockey stick blow to Bhikhabhai. Farshuram, accused No.1, had a stick with which he gave three blows to her father in law (i.e. Bhikhabhai). 9.1 In the cross-examination, she reiterated that accused Nos.1 and 3, both had given blows to her father in law with a stick and hockey stick respectively. She in-fact added that all the three accused gave blows to her husband as well as her father in law. 10. Prabhaben Bhikhabhai, PW-6, Exh.41, is the wife of Bhikhabhai. She stated that all the three accused had beaten up her husband. Ghanshyam had given a blow with the bat, Kishor with hockey stick and Farshuram with a stick. Remaining witnesses who were purported eye-witnesses were completely hostile CR.A/1181/2007 7/19 JUDGMENT and disowned their statements made before the police. 11. It may, however, be noted that at the instance of accused No.2, Ghanshyam, a bat was discovered by the Investigating Agency and though the panch-witness, Chhanabhai Bhalabhai PW-18, Exh.63, turned hostile, such discovery was sought to be proved through the deposition of Investigating Officer, Shivabhadrasinh, PW-24, Exh.80. 12. From the above evidence on record, it can be clearly seen that Chamanbhai and his father Bhikhabhai received injuries pursuant to quarrel which suddenly led to fight between accused and the complainant. There was thus no common intention or prior meeting of mind. It would therefore not be possible to apply Section 34 or Section 114 of IPC to convict any of the accused vicariously for the act of other. 13. In so far as conviction of accused No.1, Farshuram, present appellant No.1 is concerned, I find that there was no legal evidence on record to CR.A/1181/2007 8/19 JUDGMENT hold him responsible for having caused the vital injuries to Bhikhabhai. The fact that the Bhikhabhai died homicidal death is not seriously in dispute. Death of Bhikhabhai was on account of two injuries received by him on his head. However, who caused such injuries cannot be stated with any degrade of certainty in the present case. 14. As noted, virtually all witnesses including the complainant, injured eye-witnesses himself, turned hostile. 15. The law on the point of testimony of a hostile witnesses is by now well settled. In the case of K. Anbazhagan, V/s. Superintendent of Police and others, etc., AIR 2004 SC 524, the Apex Court made following observations. “32. Mr. Venugopal, learned senior counsel for the respondent, contended that merely because the witnesses were not declared hostile, would not exclude or render unworthy of consideration the facts rendered by them in their evidence-in- chief. He submitted that the Court can consider any part of their testimony and can still CR.A/1181/2007 9/19 JUDGMENT believe and rely upon that part of testimony which was given in the evidence-in-chief if that part of the deposition is found to be creditworthy. According to Mr. Venugopal by not declaring the P.Ws. as hostile witnesses no prejudice has been caused to the prosecution case. To buttress his contention reliance has been placed in Gura Singh v. State of Rajasthan (2001) 2 SCC 205; State of Bihar v. Laloo Prasad (2002) 9 SCC 626 and Pandappa Hanumappa Hanamar v. State of Karnataka (1997) 10 SCC 197. This Court in Laloo Prasad's case (supra) observed that it is open to the party who called the witness to seek the permission of the Court as envisaged in S. 154 of the Evidence Act at any stage of the examination and it is a discretion vested with the Court whether to grant the permission or not. It is further observed that normally when the public prosecutor requested for the permission to put cross-questions to a witness called by him the Court used to grant it. It was further pointed out that if the public prosecutor had sought permission at the end of the chief examination itself the trial Court would have no good reason for declining the permission sought for. On a combined reading of the aforesaid decisions of this Court, it emerges clearly that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a CR.A/1181/2007 10/19 JUDGMENT matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The decisions by this Court in the above referred cases are rendered in cases where the public prosecutor seeks permission to question his own witnesses by resorting to S. 154 of the Evidence Act and the Court allowed the public prosecutor to cross-examine his own witnesses. In such cases the trial Judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it. But in the present case, the public prosecutor has not sought permission from the Court by resorting to S. 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his CR.A/1181/2007 11/19 JUDGMENT earlier evidence was given under pressure and no attempt is made to cross-examine such a witness, the Court may find it difficult if not impossible to accept the earlier statement. The trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice”. 15.1 In case of Lella Srinivasa Rao, V/s. State of A.P. reported in AIR 2004, SC 1720, the Apex Court, made following observations: “14. We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased was treated with cruelty by both the accused. However, the witnesses including the father of the deceased have not supported this case. In fact, the father of the deceased namely, PW-1, in his deposition stated that misunderstandings arose between his daughter and her husband on account of the fact that the three children of the deceased sister of the appellant were being brought up in the house of the appellant which was objected to by the deceased. If in those unfortunate circumstances the three children of the deceased sister of the appellant were being brought up in CR.A/1181/2007 12/19 JUDGMENT his family, one cannot blame the appellant or his parents for having shown compassion towards the children of his deceased sister. If that is what caused annoyance to the deceased, one cannot equate such conduct with cruelty or harassment. We also find no reason why on this aspect of the matter the father of the deceased should not speak the truth. In any event, he and his family members were the only persons who could have deposed about the treatment meted out to the deceased. All of them have denied the suggestion that the appellant or his mother-in- law treated the deceased with cruelty. The fact that these witnesses have been declared hostile by the prosecution, does not result in the automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. In any event, if their evidence is kept out of consideration, there is no other evidence to prove the prosecution allegation of cruelty and harassment meted out to the deceased. Having regard to the inconsistency in the two dying declarations we do not find it safe to act solely on them to convict the appellant, and for that reason even accused No. 2, the mother of the appellant who has since served out her sentence”. CR.A/1181/2007 13/19 JUDGMENT 16. Bearing the above principles in mind, if one peruses the evidence led by the prosecution, it would appear that Chamanbhai, complainant, did not stick to his version given before the Police, that it was accused No.1, Farshuram, who had given blows on the head of the deceased causing serious injuries. Before the Court, he turned around and stated that Farshuram, accused No.1, had not given any such blows and it was Ghanshyam, accused No.2, who had given blows to his father on the head with the bat. 16.1 PW-4 Manishaben Chamanbhai also similarly turned around from her statement before the Police. 16.2 PW-5 Manjuben Chamanbhai further confused the issue by suggesting that not only Farshuram, accused No.1, but Kishor, accused No.3, had also given blows to Bhikhabhai on the head. This version is not supported by any other witness. 16.3 Wife of Bhikhabhai, namely, Prabhaben Bhikhabhai PW-6, in fact went on to suggest that all CR.A/1181/2007 14/19 JUDGMENT three accused had given blows on the head of her husband. 17. Thus, eye-witness accounts of different witnesses contradicted with each other on the vital aspect of the matter. As already noted PW-3 Chamanbhai did not implicate accused No.1, Farshuram, in causing fatal injuries to his father. PW-4, Manishaben absolved him of any blow. PW-5, Manjuben and PW-6 Prabhaben though saw Farshuram giving blows on the head of Bhikhabhai, Manjuben added that Kishore also gave blows on the head of Bhikhabhai and Prabhaben involved all three accused in giving blows on the head of Bhikhabhai. 18. Thus on the available material on record, it is not possible to ascertain as to who caused the fatal injuries in particular. So far as Farshuram is concerned, there is no reliable evidence to hold that he was the one who had given blows to Bhikhabhai on the head which ultimately resulted in the death of Bhikhabhai. His conviction and sentence therefore needs to be set aside. CR.A/1181/2007 15/19 JUDGMENT 19. Similarly, in so far as conviction of Kishor, accused No.3, is concerned, I find that the same is based on confusing contradictory and unreliable evidence. Complainant Chamanbhai has not attributed any specific role to accused No.3, Kishor except for stating that he gave one blow with the hockey stick has not involved him. PW-4 Manishaben stated that Kishor, accused No.3, had given random blows with the Hockey stick and PW-5, Manjuben stated that Kishor, accused No.3, gave blows to Bhikhabhai on the head. PW-6, Prabhaben also attributed blows on the head of Bhikhabhai to Kishor, accused No.3. 19.1 Thus all witnesses gave different versions of the role played by Kishor, accused No.3, in the incident. Looking to such contradictory versions of the eye-witnesses and internal contradiction, it would not be possible to ascertain the role played by Kishor, accused No.3, and consequently to convict him for the said offence. His conviction and sentence, therefore, needs to be set aside. CR.A/1181/2007 16/19 JUDGMENT 20. In so far as accused No.2, Ghanshyam, is concerned, I find that consistently role attributed to him which can be discerned from different eye- witnesses accounts is that he was wielding a bat with which he gave one blow on the head of PW-3, Chamanbhai. PW-4, Manishaben also stated that Ghanshyam, accused No.2, had come out with his bat and gave one blow on the head of the father of Chamanbhai, PW-3. This was supported by the deposition of Manjuben-PW-5, who had stated that Ghanshyam, accused No.2, had given blow on the head of her husband Chamanbhai, PW-3, with a bat. 21. It can thus be seen that all important witnesses concurred on the role of Ghanshyam, accused No.2, to the extent of his having come out of house and of having given one blow to Chamanbhai, PW-3, on his head. This is corroborated by the medical evidence also when Dr.Gandhi- PW-2, while treating Chamanbhai, PW-3, had noticed corresponding injury on his head. CR.A/1181/2007 17/19 JUDGMENT 22. It is true that the above witnesses turned hostile. However, their testimony need not be totally discarded when I find that there is degree of consistency in their account to the limited extent of the role played by Ghanshyambhai, accused No.2. It also gets corroborated from the medical evidence. There is no reason to disturb the conviction of Ghanshyambhai, accused No.2, for offence under Section 322 of IPC. Dr.Gandhi, PW-2, had stated that injury of Chamanbhai, PW-3, was simple. 23. Learned advocate Ms.Amrita Ajmera, however, submitted that Ghanshyam, present appellant No.2 has aged about 21 years on the date of the incident. This was his first involvement in the criminal case. He had been on bail through out trial as well as pending appeal during which time there are no allegation of his having misused his liberty. Considering the nature of his involvement, considering the nature of offence and other attendance circumstances, she submitted that he may be given the benefit of probation. CR.A/1181/2007 18/19 JUDGMENT 24. I find that the submission is required to be upheld and the request needs to be accepted. In case of Sitaram Paswan V/s. State of Bihar reported in 2005 (1) GLHEL-SC 35754, as pointed out by learned advocate for the appellants under somewhat similar circumstances, the Apex Court was pleased to grant probation to the convict. I find that appellant No.2, original accused No.2 was aged about 21 years when the incident took place. The incident was a sequel to sudden quarrel breaking out between two neighbors. He has no criminal antecedents. No allegations of further involvement after the incident is also emerging on record. Thus, considering the nature of conviction of the appellant No.2, his relatively young age and nature of his involvement, I find that he needs to be given benefit of probation. 25. In the result, appeal is disposed of with following directions. (i)Conviction and sentence of appellant No.1 (Farshuram Hiralal Kubavat Bavaji), original accused No.1 is set aside. If not required in CR.A/1181/2007 19/19 JUDGMENT any other criminal case, he shall be released forthwith. Fine if any paid, shall be refunded. (ii) Conviction and sentence of appellant No.2 (Ghanshyam Farshuram Bavaji) original accused No.2 is confirmed. He shall, however, be given benefit of probation on his furnishing bond of good behavior for a period of 2 years which may be done latest by 31st May, 2008. He shall thus not have to serve out the sentence. However, in case of breach of bond, he shall serve the sentence imposed on him. Bail bond stands cancelled. (iii) Conviction and sentence of appellant No.3 (Kishor Farshuram Bavaji), original accused No.3 is set aside. Bail bond stands cancelled. Fine if any paid shall be refunded. Appeal is disposed of accordingly. (AKIL KURESHI, J.) ashish//