IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 569 of 1987 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus ARUNBHAI N PATEL & ANR. -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 569 of 1987 MR KC SHAH, ADDL.PUBLIC PROSECUTOR for Appellant MR PRANAV RAVAL for MR DD VYAS for Respondents -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 15/12/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 378 of the Code of Criminal Procedure, 1973, is directed against judgment dated May 22, 1987, rendered by the learned Additional Sessions Judge, Valsad at Navsari, in Sessions Case No.24 of 1986, by which the respondents are acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 2. Complainant Sureshbhai Ramanbhai Koli-Patel was residing at Bhagad Falia of village Machha, Taluka : Gandevi with his parents, wife and sister Manjulaben. At the relevant time, he was employed in Atul Company and was commuting between village Bhagad-Masha and Atul town in Virar-Shuttle. He used to leave his village for Atul town at about 5.00 A.M. and return to his village at about 8.00 P.M. Near his house, there is land admeasuring about 5 Vasha wherein palm trees, which yield toddy, were grown. In order to protect the palm trees, his parents used to stay at the field during night hours. The incident in question took place on December 18, 1985. The complainant got-up at about 4.00 A.M. in the morning and started to prepare his tiffin. He found that his parents were not in the house. Therefore, he went to the field in which palm trees were grown. On reaching the field, he found that his father was lying on the ground and was not speaking anything, but his mother was shouting. The case of the prosecution is that the mother of the complainant was uttering that they were assaulted by the respondents with an axe. On hearing the words uttered by his mother, the complainant raised shouts and, therefore, Govind Manga, Ramesh Babu, Vithal Khapa, his sister-in-law Ramilaben, his wife etc. rushed to the field. Ramesh Babu and Bhikhu Ranchhod were sent to summon a taxi. On arrival of a taxi, the injured were removed to Government Hospital at Bilimora. The Medical Officer on duty declared that Ramanbhai Patel, who was father of the complainant, was brought dead; whereas mother, who had become unconscious, was treated by the Medical Officer. Thereafter the complainant lodged his complaint with Bilimora Police Station for commission of offences punishable under Sections 302, 307 r.w.section 34 of the Indian Penal Code by the respondents. In the complaint, it was mentioned that three years prior to the date of the incident, cattle belonging to Harish Nema, who is father of the respondent No.1, had trespassed into his field, as a result of which his mother had abused Nema, whereupon Harish Nema, who is brother of respondent No.1, had severely beaten his mother, regarding which a complaint was lodged with Gandevi Police Station and Harish was prosecuted, but subsequently the case was compromised and in view of enmity, his father was killed, whereas his mother was seriously injured. As the mother of the complainant had sustained serious injuries, she was referred to the hospital of Dr.Gupta, where during the course of treatment she succumbed to her injuries. The complaint lodged by Sureshbhai was investigated by Mr.P.D.Vaghela, who was incharge of Gandevi Police Station. The investigating officer made necessary arrangement for sending the two dead-bodies to hospital for post-mortem examination. In the presence of panch witnesses, inquest on the dead-bodies of Ramanbhai and Maniben was held. The investigating officer also visited the place of incident and drew panchnama of the same. During the course of investigation, the respondents were arrested and pursuant to disclosure statements made by them, axe and dharia respectively used by respondent Nos.1 & 2 were discovered. Other incriminating articles were also seized during the course of investigation. The articles seized were sent to Forensic Science Laboratory for analysis. On conclusion of investigation, the respondents were chargesheeted in the Court of learned Judicial Magistrate, First Class, Gandevi, for the alleged commission of offence punishable under Section 302 read with Section 34 I.P.C. As the offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Valsad and was transferred to the Court of learned Additional Sessions Judge at Navsari, where it was numbered as Sessions Case No.24 of 1986. 3. Necessary charge against the respondents was framed by the learned Judge at Exh.1. The charge was read over and explained to the respondents, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Sureshbhai Ramanbhai Patel as PW.1 at Exh.15, Tarulataben Sureshbhai Patel as PW.2 at Exh.16, (3) Manjulaben Chhibubhai Patel as PW.3 at Exh.17, (4) Dr.Dilip Ishwarlal Dalal as PW.4 at Exh.18, (5) Narsinhbhai Ranchhodbhai Patel as PW.5 at Exh.22, (6) Balkumar Bhikhubhai Patel as PW.6 at Exh.23, (7) Naginbhai Bhikhabhai Chaudhary as PW.7 at Exh.24, (8) Mangabhai Dahyabhai Patel as PW.8 at Exh.26, (9) Dr.Subhashchandra Radhekrushn Gupta as PW.9 at Exh.28, (10) Haribhai Bansibhai Deshmukh as PW.10 at Exh.30, (11) Narusinh Visarsinh Chavda as PW.11 at Exh.35, and (12) Pravinsinh Dipsinh Vaghela as PW.12 at Exh.37, to prove its case against the respondents. The prosecution also produced documentary evidence, such as, inquest report relating to deceased Ramanbhai at Exh.8, inquest report of deceased Maniben at Exh.9, panchnama of place of incident at Exh.10, panchnama prepared at the time of arrest of respondent No.1 at Exh.11, panchnama regarding seizure of clothes of deceased Ramanbhai at Exh.12, panchnama of seizure of clothes of deceased Maniben at Exh.13, map of place of incident at Exh.14, post-mortem notes of deceased Ramanbhai at Exh.20, post-mortem notes of deceased Maniben at Exh.21, panchnama indicating discovery of axe and dharia pursuant to disclosure statements made by the respondents at Exh.25, certificate of injury of deceased Maniben at Exh.29, complaint of Sureshbhai at Exh.36, report of analysis at Exh.41 etc. in support of its case against the respondents. 4. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the respondents the circumstances appearing against them in the evidence of prosecution witnesses, and recorded their further statements under Section 313 of the Code of Criminal Procedure, 1973. In his further statement, respondent No.1 claimed that the witnesses had deposed falsely against them because of enmity as well as friendship with the complainant, but he was innocent. The respondent No.2 in his further statement claimed that he and respondent No.1 were falsely implicated in the case. According to him, the deceased were dealing in toddy and they were implicated in the case on suspicion, but they had not committed any offence as alleged by the prosecution. However, no evidence was adduced by any of the respondents to substantiate their respective claim in their further statements. 5. On appreciation of evidence, the learned Judge has held that the prosecution has failed to establish its case against the respondents and acquitted the respondents by judgment dated May 22, 1987, giving rise to instant appeal. 6. Mr.K.C.Shah, learned A.P.P., contended that the finding recorded by the learned Judge of the trial Court to the effect that deceased Maniben was not in a position to speak and, therefore, it was not established that the respondents were involved in the incident, is against weight of evidence on record and deserves to be set aside, more particularly when it is asserted by complainant Sureshbhai that he had found his mother in an injured condition at the field and that she had named the respondents as assailants. It was argued that the learned Judge of the trial Court was not justified in disbelieving the evidence adduced by the prosecution regarding discovery of weapons pursuant to disclosure statements made by the respondents on the specious plea that panch witness had not supported the prosecution case, and it was submitted that discovery having been established by the investigating officer, should have been relied upon by the learned Judge of the trial Court as a circumstance established against the respondents. The learned counsel of the State Government emphasised that reliable testimony of witness Narsinhbhai, recorded at Exh.22, establishes that on the date of incident he had sighted both the respondents, who were armed with an axe and a dharia respectively when the respondents were passing by his house and, therefore, the prosecution case should not have been disbelieved on the ground that testimony of Sureshbhai was not supported by independent evidence on record. It was contended that testimony of witness Balkumar Bhikhubhai Patel, examined at Exh.23, shows that in his taxi deceased Maniben was removed to Mengushi Hospital at Bilimora, and on way, Maniben was uttering words "Hey-Ram, Hey-Ram" which, in turn, establishes that the deceased was in a position to speak and, therefore, testimony of complainant Sureshbhai mentioning that the deceased was in a position to speak at the field and named the respondents as assailants should have been believed by the trial Court. According to the learned A.P.P., contents of panchnama produced at Exh.10, make it more than clear that a copper ring with inscription of "Hey-Ram" on it was found from the place of incident, which supports the case of complainant Sureshbhai and that of witness Balkumar Bhibhubhai that the deceased was uttering the words "Hey-Ram, Hey-Ram", as a result of which claim made by witness Sureshbhai that the deceased was in a position to speak at the field and had named the respondents as assailants, should be accepted by this Court. The learned counsel pointed out that the size of axe found during the course of investigation as well as injuries sustained by the deceased match with each other, which probabilises the prosecution case that respondent No.1 had assaulted the deceased with knife and, therefore, in any view of the matter, acquittal of respondent No.1 should be set aside by this Court. It was argued that find of blood on axe discovered pursuant to disclosure statements made by the respondents indicates that respondent No.1 was involved in the incident and, therefore, impugned judgment should be set aside. It was stressed that the learned Judge of the trial Court had failed to appreciate the evidence on record in its true perspective and, therefore, the appeal should be allowed. 7. Mr.Pranav Raval, learned advocate appearing for Mr.D.D.Vyas, learned counsel of the respondents on record, pleaded that testimony of witness Sureshbhai read with that of witness Tarulataben makes it abundantly clear that the incident had taken place on a dark night, as a result of which it was not possible for Maniben to identify the assailants, who had mounted attack on her and her husband Ramanbhai and, therefore, well-founded acquittal of the respondents should not be interfered with by this Court in instant appeal. According to the learned counsel of the respondents, testimony of Dr.Dilip Dalal as well as that of Dr.Gupta establishes that the nature of injuries sustained by deceased Maniben was such that she was not in a position to speak at all and, therefore, so-called oral dying declaration made by deceased Maniben before her son Sureshbhai and others is rightly disbelieved by the learned Judge of the trial Court. The learned counsel of the respondents emphasised that as such the prosecution has failed to establish motive for commission of crime and in view of weak and tender evidence adduced by the prosecution against the respondents, acquittal of the respondents should be upheld. It was urged by the learned counsel of the respondents that find of blood on axe allegedly discovered pursuant to disclosure statements made by the respondents was of no consequence, as it could not be positively established by the prosecution that blood on the axe was having the same blood group as that of deceased Ramanbhai or deceased Maniben. The learned counsel further emphasised that cogent and convincing reasons having been given by the learned Judge of the trial Court while recording acquittal of the respondents and as the learned A.P.P. has failed to dislodge them, the appeal should be dismissed. 8. This Court has heard Mr.K.C.Shah, learned A.P.P. for the State and Mr.Pranav Raval, learned counsel of the respondents at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 9. The fact that deceased Ramanbhai and deceased Maniben died homicidal death is not in dispute. The injuries sustained by deceased Ramanbhai have been enumerated in his inquest report produced by the prosecution at Exh.8, whereas injuries sustained by deceased Maniben have been enumerated in inquest report, which is produced at Exh.9. The testimony of Dr.Dilip Dalal shows that he had performed autopsy on the dead-bodies of the deceased. The injuries sustained by deceased Ramanbhai as well as those sustained by deceased Maniben have been enumerated by Dr.Dalal in his substantive evidence before Court. Those injuries are also detailed in post-mortem notes of the deceased produced at Exhs.20 & 21 respectively. The finding recorded by the learned Judge of the trial Court that it is established by the prosecution that deceased Ramanbhai and deceased Maniben died homicidal death is eminently just and is hereby upheld. 10. According to the prosecution, the motive which prompted the respondents to commit murders of deceased Ramanbhai and deceased Maniben was that three years prior to the date of incident, cattle belonging to Nemabhai, who is father of respondent NO.1, had trespassed into the field of the complainant, as a result of which deceased Maniben had abused Nemabhai, whereupon Harish Nemabhai, who is brother of respondent No.1, had severely beaten deceased Maniben, regarding which a complaint was lodged at Gandevi Police Station and to avenge abuses hurled by deceased Maniben as well as filing of complaint, the deceased were killed. However, in Para-7 of his testimony the complainant has admitted that the said case was compromised. Further, respondent no.1, as such, had no grievance against the deceased. Because of utterance of abuses by mother of the complainant and filing of complaint, Nemabhai, who is father of respondent No.1 and Harish Nemabhai, who had severely beaten deceased Maniben, would have been annoyed and they would have tried to assault the deceased, but it is not the case of the prosecution that the deceased were killed either by Nemabhai or his another son Harish Nemabhai. This is a case, which is based on so-called oral dying declaration made by deceased Maniben before her son Sureshbhai and others and, therefore, motive for commission of crime which is alleged, cannot be ignored by the Court. In a given case, if evidence regarding oral dying declaration is found to be cogent and trustworthy, absence of motive may not have any adverse effect on the prosecution case. However, in this case, the prosecution has approached the Court with a specific case of motive and failed to prove the same, which is a circumstance against the prosecution. 8. The testimony of witness Sureshbhai Ramanbhai Patel shows that normally he was leaving his house for Atul town at about 5.00 A.M. and was returning home at about 7.30 to 8.00 P.M. What is claimed by the witness before the Court is that on the date of incident he had got up at about 4.00 A.M. and had gone to field to answer the call of nature. It is also his case that while going to answer the call of nature, he had taken with him a metallic pot and battery. It is also claimed by him that he was daily going to his field for answering the call of nature. As per his case, when he reached the field, he found that his father was lying on the ground, whereas his mother was shouting. What is asserted by this witness before the Court is that his mother had stated before him that the respondents had assaulted them with axe. However, in cross-examination the witness has admitted that it was not stated by him in his complaint that he had gone to the field to answer the call of nature. While drawing the panchnama of place of incident, neither metallic pot nor battery could be recovered. Absence of find of metallic pot and battery makes the claim of the witness that he had gone to the field to answer the call of nature highly doubtful. The witness has also admitted that on his raising shouts, his sister and others had come to the field, but at that time her mother was not able to speak at all. His claim that when deceased Maniben was being taken to Mengushi Hospital at Bilimora, his mother was uttering the words that the respondents had assaulted them, does not inspire confidence of the Court, inasmuch as it is not so stated by the driver of the Car in which deceased Maniben was removed to the hospital. This is quite evident if one looks at the testimony of witness Balkumar Bhikhubhai Patel recorded at Exh.23. The testimony of witness Tarulataben indicates that the incident had occurred on a dark night and it was not possible to see face of a person without the help of a battery or lantern. She has, in terms, admitted that when her father-in-law and mother-in-law had gone to the field for the purpose of protecting palm trees, they had not taken with them a lantern. She has also admitted in her testimony that the field is so nearby her house that any one in the house would hear shouts if raised from the field. It is neither claimed by complainant Sureshbhai nor by this witness i.e.Tarulataben that any shouts either of deceased Ramanbhai or of deceased Maniben were heard at all. What is mentioned by Tarulataben in her testimony is that her parents-in-law were required to sleep at the field to protect palm trees because theft of toddy yielded from palm trees was taking place and that those, who were coming to commit theft of toddy, were also scuffling. A suggestion was made that she had not stated in her police statement that in her presence and in the presence of her sister-in-law, her husband i.e. Sureshbhai had asked her mother-in-law as to what had happened and thereupon her mother-in-law had told them that they were assaulted by the respondents. However, this contradiction stands proved by the testimony of the investigating officer Mr.Vaghela, who is examined at Exh.37. Again, in para-11 of her testimony, Tarulataben has admitted that by the time the taxi had come, her mother-in-law had become unconscious and was uttering the words "Hey-Ram, Hey-Ram". She has further mentioned in her cross-examination that she was so scared that she was not able to hear what was being stated by her mother-in-law and that her mother-in-law was bleeding from ears, nose and mouth. Thus, the testimony of witness Tarulataben is of no assistance to the prosecution. Similarly, the prosecution has examined Manjulaben, who is sister of the complainant, to prove that on way to the hospital, her mother had made oral dying declaration implicating the respondents. However, in Para-9 of her testimony, this witness has, in terms, admitted that it was not stated by her in her police statement that her mother had made any dying declaration implicating the respondents. What is admitted by her in the said paragraph is that she had deposed to the oral dying declaration made by deceased Maniben implicating the respondents only because it was so stated by her brother i.e. the complainant in his testimony before the Court. She has also admitted that the night on which the incident had taken place was so dark that she was not able to see face of anyone. It was also admitted by her that in absence of battery light, neither she nor her brother nor her sister-in-law was able to see anything in the field at all. Thus, in all probability, it was not possible for deceased Maniben to identify her assailants as well as assailants of her husband and, therefore, it is not probable that she had made oral dying declaration as alleged by the complainant implicating the respondents. Dr.Dilip Dalal, who had performed autopsy on the dead-bodies of the deceased, is examined at Exh.18. In his cross-examination, this witness has, in terms, admitted that nature of injuries sustained by deceased Maniben was such that she must not have been able, or in a position to speak at all. Again, Dr.Gupta, who is examined at Exh.28, has also stated in his testimony before the Court that deceased Maniben must have lost consciousness within no time of assault on her. It is relevant to notice that the incident had taken place at about 2.00 A.M. and this is quite evident from the testimony of Dr.Dalal, whereas the complainant had gone to the field after 4.00 A.M. and, therefore, it is not probable that deceased Maniben was in a position to make any statement before anyone. According to Dr.Gupta, the deceased had received serious injuries on her brain and, therefore, it was not probable that she was in a position to speak after receiving injuries. It is also stated by the witness that after receipt of injuries it was not possible for deceased Maniben to sit on her own. This part of testimony of Dr.Gupta becomes relevant because it is asserted by complainant Sureshbhai that he had found her mother sitting in the field and that while she was sitting, she had made oral dying declaration implicating the respondents. The find of human blood on axe recovered is of no consequence, as it is not established that blood found had the same blood group as that of either deceased Ramanbhai or deceased Maniben apart from the fact that discovery of weapons is not supported by panch witness Mr.Chaudhari. According to the complainant, several other persons had also come to the field on hearing his shouts, but they are not examined for reasons best known to the prosecution. On overall view of the matter, this Court finds that oral dying declaration sought to be relied upon by the prosecution is not satisfactorily proved and the acquittal of the respondents cannot be regarded either as perverse or unreasonable. 9. This is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly when the evidence has not inspired confidence of the learned Judge who had opportunity to observe demeanour of the witnesses. As this Court is in general agreement with the view expressed by the learned Judge, this Court does not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the learned Judge and in the opinion of this Court, expression of general agreement with the view taken by the learned Judge would be sufficient in the facts of the case. This is so, in view of the decisions rendered by the Supreme Court in the cases of