CR.A/1348/1986 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1348 of 1986 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 JALALMIYA HUSENMIYA PIRJADA ========================================= =Appearance : MR PD BHATE, ADDL PUBLIC PROSECUTOR for the Appellant MS AMEE YAJNIK for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 24/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat against the order of acquittal dated 07.08.1986 passed by the CR.A/1348/1986 2/9 JUDGMENT learned Additional Sessions Judge, Morbi in Sessions Case No.14 of 1986. 2. The facts, in brief, are such that on 9.2.1986, at 9.30 a.m., in the sim of village Bodaki, Taluka Malia, District Rajkot, the deceased was working in his field. The daughter of the deceased, namely Prabhaben (PW 1) was also working in a nearby field. Prabhaben heard the call of her father and when she reached the deceased, she saw two persons running away. Out of the two, one was identified as accused No.1. She found that her father had bleeding injuries on the left side of his body and upon asking, her father replied that accused No.1 had given knife blow to him and both ray away towards west direction. 2. The deceased was taken to the Government dispensary and was treated by Dr. Hirani (PW 3). The Doctor sent yadi to the Police Station and it was registered in the Police Station Diary Entry No.14 by Ajitbhai (PW 23). On the basis of the said entry, Rameshchandra Mehta (PW 22) came to the Government Hospital and recorded the FIR (Exh.67) of the deceased and the same was sent for its registration to Morbi Police Station. This FIR, thereafter, was sent to Malia Police Station and was registered at CR No.I-12 of 1986. The accused were arrested on 10.2.1986. Further statement at Mark 76/1 of the deceased was recorded on 11.2.1986 by Kishorsinh Zala (PW 7). Since the injured expired on 13.2.1986, offence under Section 302 of the Indian Penal Code was added. After completion of the investigation, charge sheet was filed. 3. The accused were tried by the learned Additional CR.A/1348/1986 3/9 JUDGMENT Sessions Judge, Morbi, who, by his judgment and order dated 7.8.1986, was pleased to acquit the accused. Hence, the the State of Gujarat has filed the present Criminal Appeal before this Court. 4. The Trial Court had given following reasons for acquittal of the accused: 4.1. PW 1- Prabhaben Khimjibhai (daughter of the deceased) Exh.7 (page 67), though in chief she stated the prosecution case as per the FIR, in para 22 of her evidence (page 81) she has admitted that she has not stated in her police station that she asked her father as to what happened upon which her father informed her that accused No.1 had given knife blow. She has further admitted that it is not stated by her in the police statement that her father called her and when she saw in that direction, she found two persons standing near her father. It is further admitted by her that she had not identified the accused. 4.2. PW 2- Ravjibhai Chhaganbhai, Exh.9, has stated in his evidence that Prabhaben -PW 1 had informed him that her father was injured. Except this, nothing was stated by Prabhaben to this witness. This witness was working in scarcity work and there were many other people who were working at the relevant time in that area and field. Moreover, this witness has admitted that in his police statement, he has not stated that Prabha had informed him about the incident and she did not inform him that her father was injured. 4.3. PW 14- Chhagan Gangaram, Exh.48, is the brother of the deceased. According to his evidence, he was informed about CR.A/1348/1986 4/9 JUDGMENT the incident by Kantilal Khimjibhai (PW 15- son of the deceased). Thus, the evidence of this witness is hearsay. Moreover, he has further deposed that on the way, one Nagjibhai Bhagwanbhai, PW 13, met him and this Nagjibhai informed him that accused No.1 had inflicted knife blow and had run away. However, Nagjibhai Bhagwanbhai, PW 13, was declared hostile by the prosecution and has not supported the prosecution case. The statement of this witness was recorded three days after the date of incident, wherein he has admitted that he did not inform the police while his statement was recorded that it was Kantilal, PW 15, who informed him about the incident. This witness has further admitted that when he tried to ask the deceased about the incident, the deceased was not in a position to speak. He has further admitted that even Prabhaben, PW 1, daughter of the deceased also did not inform him or tell him that accused No.1 had given knife blow to her father. 4.4. PW 15- Kantilal Khimjibhai- Exh.49 is the son of the deceased and according to his evidence, he was informed by PW 1 Prabhaben, his sister that accused No.1 had given knife blow to his father. This witness has further admitted that when he tried to ask the deceased about the incident, he did not speak anything. He has further deposed that PW 13, Nagjibhai Bhagwanbhai, had informed him that the deceased was given knife blow by accused No.1. However, as stated hereinabove, this witness Nagjibhai PW 13 was declared hostile. Moreover, statement of witness was recorded 3 days after the incident by the police and he has admitted in his deposition that in his police statement, he has not stated that Prabhaben-PW 1, his sister, has informed him that accused No.1 had given knife CR.A/1348/1986 5/9 JUDGMENT blow to his father. 4.5. PW 25-witness Arjanbhai Gangaram, Exh.72, is the brother of the deceased. According to his evidence, he was informed by one Thobhan Gangaram of village Rajpar that the accused No.1 had inflicted knife blow to his brother. Thus, his evidence is hearsay evidence and the prosecution has not examined witness Thobhan Gangaram, who informed this witness about the incident. The police statement of this witness was also recorded three days after the incident, i.e. on 13.2.1986, at about 8.00 p.m., in the evening. 5. The prosecution has not offered any explanation for late recording of police statement of the above mentioned witnesses though they claimed to be aware of the incident on the same time and date of the incident. 6. The evidence of dying declaration relied upon in the FIR Exh.67 of the deceased recorded by PW 22 Rameshbhai, dying declaration Exh.80 recorded by the Executive Magistrate PW 28, Bhogilal Solanki at Mark 76/1 and further statement of deceased recorded on 11.2.1986 by PW 27 Kishorsinh Zala. The evidence of dying declaration is rightly not availed by the learned Sessions Judge, as according to the prosecution evidence, the deceased was unable to speak anything immediately after the incident. PW 14 Chhagan Gangaram has stated in his evidence that when the deceased was brought from the scene of offence to the village in a cot, at that time he tried to talk and ask the deceased, but the deceased was not speaking. He has further admitted that he had gone to the hospital with the deceased where Jamadar of Navlakhi had CR.A/1348/1986 6/9 JUDGMENT come to the hospital and he only asked him as to how is the health of the injured, whereby he informed the Jamadar that saline was administered and, therefore, the said Jamadar had gone away. He has further admitted that when the deceased was being shifted to the hospital as well as in the hospital, when he was admitted, he had no talk with the deceased because the deceased was unable to speak. 7. Similarly, PW 15- Kantilal Khimjibhai, son of the deceased had also admitted in his evidence that when his father was lying in the cot immediately after the incident, he asked him but his injured father did not speak anything. 8. Similarly, Dr. Hirani- PW 3, who examined the deceased at first point of time, has also admitted in his evidence that the patient was not a position to give proper reply as his condition was not good and was not fully conscious. The Doctor has further admitted that he was not in a position to understand the questions put to him, neither was in a position to give reply. He has stated that the injured was given treatment for about half an hour and during all this time, the injured was semi unconscious. 9. In above view, the evidence of dying declaration led by the prosecution was not believed by the learned Sessions Judge. 10. The prosecution has relied upon the evidence of the FIR lodged by the accused on 13.2.1986 regarding the injuries caused to him. However, it is pertinent to note that the said FIR was recorded while the accused was in police custody CR.A/1348/1986 7/9 JUDGMENT and the investigation of the offence for which they were tried was already commenced. Thus, in view of the settled legal position, the FIR given by the accused is inadmissible in evidence and, therefore, the same piece of evidence led by the prosecution is rightly discarded by the learned Judge. 11. The evidence of panchas with regard to the scene of offence, seizure of weapon, clothes of the accused, physical condition and arrest panchnama of the accused etc. is disbelieved by the learned Sessions Judge as all panchas of the said panchnama were declared hostile as none of them supported the prosecution case. 12. The learned Additional Public Prosecutor urged that it was a case where the dying declaration was recorded by the Executive Magistrate. There is no reason why his statement should be disbelieved and further there was an eye witness in the case. In all probability, the prosecution witness should have been given credence and the acquittal should not have been recorded. 13. Per contra, the learned counsel for the defence urged that cogent reasons have been given by the Trial Court to discard the testimony of the witnesses. The dying declaration was rather impossible. It appears to be a fabrication. Not only that the witnesses say that the deceased was not in a position to speak but the Doctor Hirani, PW 3, has also stated that the deceased was not in a position to understand and reply. Thus, the treatment given to the prosecution case is perfectly in line with the law governing the criminal cases. CR.A/1348/1986 8/9 JUDGMENT 14. We have heard the learned Additional Public Prosecutor and the learned counsel for the defence and has given our thoughtful consideration to the facts obtaining on record. 15. The only eye witness PW1, Prabhaben, if read in its entirety, she fails to impress as an eye witness. She has clearly stated that she was informed about the assailants by her father. This excludes her as having eye witness. She has further stated that she has not identified the accused. This statement on her part is a category where she cannot be considered for any reliance. 16. The other witness PW 2 claims that he was informed of incident by PW 1 Prabha, but then omits to state so in his Section 161 statement. Thus, making it impossible to consider this part of his story. 17. PW 3 and PW 4, the close relatives and witnesses of various situations, demolish the case instead of supporting the same. 18. The witnesses of the prosecution are not obliging witnesses to the prosecution. They are got up witnesses and therefore, failed to satisfy the test of cross examination. They by their testimony have excluded the possibility of any dying declaration having made by the deceased. They have accepted that he was not in a position to speak. This aspect when gets support for the evidence of doctor that the patient was not in a position to understand and speak properly any CR.A/1348/1986 9/9 JUDGMENT dying declaration capable of supporting prosecution case would stand excluded. 19. If, in the aforesaid circumstances, the prosecution case has not been believed by the Trial Court, then this Court considers that, that cannot be found fault with. Thus, the appeal is, therefore, deserves to be dismissed and is accordingly dismissed. The bail bond of the accused is accordingly cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT,J.) omkar