CR.A/104619/1985 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1046 of 1985 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 ? ====================================== STATE OF GUJARAT Versus NATVARBHAI S ALIAS CHHAGANBHAI MISTRY ====================================== Appearance : Mr. Maulik Nanavati, APP, for the Appellant MR BC DAVE for the respondent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 29/07/2008 CR.A/104619/1985 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been preferred by the State of Gujarat against the judgement and order of acquittal dated 8.5.1985 passed by the learned Sessions Judge, Bharuch in Sessions Case No. 97 of 1984. 2. Briefly stated the case of the prosecution is that on 4.5.1984 the deceased was fetching water from the tap near the Otla of neighbour Ambalal Somabhai at about 12.00 noon. At that time the accused suddenly came out of the house of Ambalal Somabhai with an axe in his hand and asked the deceased as to why his father was not repaying his money. So saying, the accused gave two blows with the axe on the head of the deceased. 3. In support of his case, the prosecution has primarily relied upon the evidence of three eye witness, viz. Jayantibhai Chhaganbhai (PW-2), Shobhnaben Mangaldas (PW 3) and Sukhabhai Kalidas (PW 4). However the trial Court has held that the evidence of all these three witnesses is self-contradictory and does not support the case of prosecution. PW-3 Shobhnaben though claims to be an eye witness has admitted that she was cooking food in rear portion of her house and on hearing the hue and cry she came to her window and saw the deceased lying on the Otala. Therefore, the trial Court has held that it is highly improbable that this witness might have seen the actual incident. Jayantibhai PW-2 has been disbelieved because his testimony is contrary to the evidence of PW-3 and PW-4. Jayantibhai in his evidence states that he along with PW-4 Sukhabhai had chased the accused. This has been categorically CR.A/104619/1985 3/4 JUDGMENT denied by Sukhabhai. Further, PW-2 has stated that statement of PW-4 was recorded by the police on the same day along with his statement. However, PW-4 as well as the Investigating Officer state that statement of PW-4 was recorded on the next day. Furthermore, PW-3 has denied seen PW-2 when she went near the deceased on the Otala and during the period that she remained at the scene of offence. The trial Court has therefore held that the evidence of Sobhnaben PW-3, Sukhabhai PW-4 cast a serious doubt about the presence of Jayantibhai. Also evidence of PW-4 suggests that PW-3 may not have witness the incident. As regards evidence of PW-4 Sukhabhai, the trial Court has observed that his evidence is full of material and vital contradiction and his conduct subsequent to the incident raises suspecision about his credibility. 4. The trial Court has also held that there is shifting of place of incident inasmuch as the place of incident described by the eye witnesses is different from the place of incident mentioned in the panchnama. Whereas, the eye witnesses state that the deceased was attacked and lying on the Otala about 2-3 feet from the door of Ambalal's house, the panchnama shows blood marks and hair of the deceased on the plaster of the estern wall of otala which is at a distance of about 15 feet from the place stated by the witnesses. The trial Court has observed that the prosecution has not been able to explain this inconsistency and these circumstance cast a serious doubt on the truth and probability of the case. Furthermore, the trial Court has held that though the incident has occurred on the otala of Ambalal Somabhai and the accused is stated to have picked up the axe from the house of Ambalal, Laxmiben wife of Ambalal who was present in the house and is thus material witness has not been examined by the prosecution without any reasonable reason. Such withholding of material witness has led therefore to throw serious CR.A/104619/1985 4/4 JUDGMENT doubt on the prosecution case. 5. We have heard learned Additional Public Prosecutor, Mr. Maulik Nanavati and Mr B.C. Dave, learned advocate for the respondent. Though Mr Nanavati argued that the reasoning given by the trial court is erroneous and that the witnesses have established the case beyond reasonable doubt, we are not in agreement with the said submission. The trial Court, in our considered opinion, has correctly disbelieved the evidence of PW No.2, PW No.3 and PW No.4. The prosecution claims to have witnessed the incident. Also the trial Court has rightly recorded that shifting of the scene of evidence and non-examination of the material witness by the prosecution casts a serious doubt over the credibility and truthfulness of the prosecution case. Thus, we are persuaded that State appeal deserves no attention and deserves to be dismissed. Accordingly, the same is dismissed. Bail bonds of the accused are ordered to be cancelled. Pursuant to our order dated 28th July 2008, respondent – original accused has been produced before the Court. However, in view of the fact that we have dismissed the appeal, respondent is directed to be set at liberty forthwith. Record and proceedings be forwarded to the trial court forthwith. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd