CR.A/575/1989 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 575 of 1989 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 PUNJAJI MUDUJI CHUDASAMA DARBAR AND OTHERS ========================================= =Appearance : MR MAULIK NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant MR YS LAKHANI for MR RR TRIVEDI for Opponent No.1 MRS KRISHNA V BAROT for Opponent(s) : 1 - 3. ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 06/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/575/1989 2/10 JUDGMENT 1. The present appeal has been filed by the State against judgment and order dated 16.6.1989 passed by the learned Sessions Judge, Junagadh in Sessions Case No.143 of 1988, whereby the learned Sessions Judge has acquitted the accused of the charges levelled against them. 2. The case of the prosecution as per the charge framed is to the effect that on 18.8.1988 early in the morning at 6.30 a.m., the accused-respondents have formed a common intention at village Aarena to commit the murder of Karsan Arjan and, in furtherance thereto, accused Nos. 1 and 2 have caused injuries to Karsan with knives and accused No.3 has caused injuries by an ax which were sufficient in the ordinary course of nature to cause death and further the accused No.1 has abused deceased Karsan and has also administered threat to Maisur Karsan and thereby in abatement to each other have also committed the breach of the notification issued by the District Magistrate and thereby have committed offences as alleged. 3. The incident has taken place near bus stand of Aarena village early in the morning at 6.30 a.m. and there are as many as six witnesses residing nearby. Pertinently, deceased Karsan was the Sarpanch of village Aarena. Complainant- PW 1 Hira Keshu happens to be the father of one Arjan who married with the daughter of deceased Karshanbhai. It is the case of the complainant that at 6.00 a.m., he used to go to dairy to supply milk and on the date of incident also, he started at 6 O'clock taking milk in a cane in his hand on his feet. He reached on the road going towards Aarena village and he had seen his 'Vevai' coming on cycle. Soon after Karsan CR.A/575/1989 3/10 JUDGMENT threw his cycle and rushed towards cycle and the complainant had seen all the three accused running after Karsanbhai. It is alleged that Karsanbhai was then caught and all the three accused have caused injuries to him. He also says that he had seen Hardas Bhoja and Vansa Jiva nearby. He then says that a rikshaw came and all the three accused sat in it and went towards Mangrol. 4. The complainant then deposes that he had seen Karsanbhai and he was found dead. The complainant then had covered body of the deceased with 'Faliya- a piece of cloth used to tie as turban on the head'. He then says that one rikshaw came and sitting in it, he had gone to Mangrol to lodge the complaint. He says that while he was going to Police Station, Vaghela Saheb (I.O.) was coming out of his house and he told him about the incident and then he was taken to police station and took his complaint. 4.1. This witness admits the enmity between deceased Karsanbhai and accused No.1 Punjaji on account of election dispute and he has also admitted that he also contested the election. 5. In cross-examination, this witness has come out with following facts which, according to defence, weaken the case of the prosecution. 5.1. Firstly, he admits in his cross-examination that the dairy has closed taking milk for three months. Then, he says that the milk was being collected at the deceased's place and he was not going to deliver the milk at dairy but was going to CR.A/575/1989 4/10 JUDGMENT Karsanbhai's (deceased) residence. He also stated that son of Karsanbhai, named Kishor, was taking the milk and was making entry in the diary. Neither Kishor is examined in the present case nor any such diary is produced to corroborate and substantiate the say of the complainant. 5.2. Surprisingly, when he refers to Hardas Bhoja and Vansa Jiva in his complaint as well as chief examination being eye witness of the incident, he does not know as to what either of them had done after the incident. It is pertinent that Hardas, PW 6, is Up Sarpanch of the village. He specifically admits in his cross examination that he does not know what has happened to 'Faliya' with which he covered the dead body. On the contrary, when the Inquest Panchnama was drawn, the dead body was covered with blood stained bed sheet which was further covered by another bed sheet and upon which a plastic cover (Talpatri) was put. It is not coming out on record as to who had put all the three covers, as aforesaid, on the dead body of Karsanbhai. Surprisingly, complainant nor relative of the deceased and Hardas another witness and Up Sarpanch of village though were practically together at the scene of offence and at the time when the incident occurred and seeing each other witnessing the incident, does not know thereafter as to what is done by the other fellow. 5.3. As per the prosecution case, both of them catch different rikshaws and reached to the police station to lodge the complaint. Very surprisingly, Hardas and another eye witness when reaches to the police station, seeing inside Hira Keshu- complainant sitting, without doing anything he just returns back from the police station without even entering into the CR.A/575/1989 5/10 JUDGMENT police station and without verifying as to whether the complaint is being lodged or not. The conduct of both the witnesses is highly unnatural and both of them being interested witnesses and also the chance witnesses could not have been believed and according to defence have rightly not been believed by the learned Tribunal Judge. 6. The facts contained in Inquest Panchnama (Exh.28) further falsify story of the prosecution as the same though is drawn at the instance of the Investigating Officer, Mr. Vaghela and is drawn between 9.20 a.m. To 11.00 a.m., it specifically refers only to the fact that Hira Keshu- complainant informs the Investigating Officer that a dead body is lying of Karsanbhai and upon such information divulged that the Police Officer had come with Dy.S.P. This means that till the Inquest Panchnama is drawn till 11.00 a.m. on 18.8.1988, the complaint was not lodged. However, if the FIR is seen, it is shown to have been registered at 8.00 a.m., the time before Inquiry Panchanama started and had it been the case the Inquest Panchnama which had started at 9.20 a.m., i.e. 1.20 hours after registration of the complaint would not have simply referred about the only information divulged by the complainant that a dead body is lying at particular place. This clearly shows that the FIR is a part of investigation document. 7. The Investigating Officer in his deposition has clearly admitted that he has recorded the statements of independent witnesses residing nearby at the very first point of opportunity available to him and he recorded statements of the persons named in the FIR only in the afternoon subsequent to recording of statements of such independent witnesses. Surprisingly, not CR.A/575/1989 6/10 JUDGMENT a single independent witness residing just in the vicinity of the place of incident is examined in the present case. The investigation therefore, has not been fair not only while investigating but even at the time when it had an opportunity to examine the witnesses before the court. 8. The another eye witness PW 6 Hardas Bhoja is also found to be an absolute lie, inasmuch as his presence at the scene of incident at 6.30 a.m. was unnatural. He had stated that he was going to attend somebody's death. There is nothing found during the course of investigation as to who died and what was his relation with the deceased whom he had an occasion to see. He has not even given the address as to where he wanted to go. As stated above, though he was just at 5 steps away from complainant Hirabhai, he does not notice as to what Hira did after the incident. He admittedly caught a rikshaw to inform the police station. When he reaches to the police station, he found from outside that Hirabhai is lodging the complaint and without doing anything, he just returns back. As stated above, this witness was Up Sarpanch of the village whereas the deceased was the Sarpanch of the village. He also admits in his cross- examination that while he had seen Hirabhai inside the police station, he had returned but he did not know as to what Hirabhai was doing there. 9. Then remains two eye witnesses. They are chance witnesses and belonging to the same community of the deceased and the above-referred two witnesses. It has come on record that because of Panchayat election, there were two groups in the village. One group was belonging to Darbar CR.A/575/1989 7/10 JUDGMENT community to which the accused belong and the other one is of Aher community to which all the four witnesses including the complainant and the deceased belong. Remaining two witnesses on the face of it are got up witnesses inasmuch as, as per their say that when they reached near the scene of incident, he had seen the incident and one of the accused giving threat-full sign to go back, they returned back and they passed nearby the house of the deceased where they informed son of the deceased namely Maisur that Darbars are fighting with his father. They do not give any names to the son of the deceased. As per their say, they were so frightened that they had to go back but then again within few minutes as per their say they came back to the place of incident. 10. After coming to the place of incident, Vansabhai says that his statement was recorded at 2.00 p.m. by the police whereas the fourth witness Bhura Dana says that he and Vansa had gone to Chorwad at 11.00 a.m. on the date of incident and returned only in the evening and after they returned from Chorwad that Vansa went police in the evening and he went thereafter to the police for giving statement. This fact falsifies the say of Vansabhai that his statement is recorded at 2.00 p.m. (noon hours) and that too the police had come to him to record his statement. As stated above, Vansabhai's name though is mentioned in the FIR, police does not bother to record his statement immediately but instead the police records the statement of independent witnesses residing nearby, some of whom must have heard the shouts of Karsanbhai- deceased as complainant has stated in his deposition that Karsanbhai had shouted for help. Finding that no independent witnesses revealed the name of any of the CR.A/575/1989 8/10 JUDGMENT accused, that the eye witnesses who are belonging to the same community to the deceased and inimical to Darbar community on the election issues of the village are got up and concocted subsequently. 11. The fact of two new brand knives being discovered and before the discovery of such knives the bag taken from the police station fitting in the same size of the knives create doubt about prosecution. Panch witness Arvindbhai in his deposition at para 10 clearly speaks of the fact. 12. The medical evidence as discussed by the learned Judge based on the deposition of the medical officer fortifies the defence version inasmuch as one of the injuries being injury No.6 is said to have been caused 3 to 4 hours before the death on the basis of the colour of the injury. True is that the medical evidence cannot be so emphatically gives the precise opinion. However, it can be taken as the base to corroborate the defence version. If the nature of injuries is such which probabalize the incident having occurred 3 to 4 hours before the death of the deceased. The incident might have occurred in the midnight at the hands of somebody and the deceased must be lying there at the scene of offence without being attended by anybody. He must have died much subsequent to the assault upon him and when his dead body was found lying. Hira Keshu-his Vevai has lodged the complaint only divulging the fact that his dead body is lying at the scene of offence as specifically coming out in the first paragraph of the Inquest Panchnama. Thus, the learned Judge has rightly appreciated the evidence on record and the defence version and has rightly acquitted the accused holding that the charge levelled against the accused is not proved beyond CR.A/575/1989 9/10 JUDGMENT reasonable doubt. 13. The complainant specifically deposes that after the assault was made by the accused, all the three accused have sat in a rikshaw and have gone towards Mangrol. Rikshawala named Parbat is examined at Exh.38 and who specifically states that three persons have sat in his rikshaw who were looking like Darbars but they were not having any weapons with them. The rikshawala does not notice any such blood on clothes of the person who boarded the rikshaw, nor he deposes about any weapon with them. 14. The learned Additional Public Prosecutor assailed the judgment on the ground of the case being supported by eye witness. Such witnesses have been disbelieved on such grounds which will not be valid for being treated as such. The political enmity was a fact which was available for being a strong motive. 15. We have considered the case of both the parties and perused the record. The eye witness account in this case stands with the complainant. His reason for being present on the scene of occurrence is the sale of milk. This fact is not established by the evidence conclusively as he prevaricates on the point that to whom he was to sell the milk daily, deceased or the other persons. 16. It is also noteworthy that while he is alleged to have witnessed the incident, one other witness is also alleged to have witnessed the incident. Both are from the same community. Both claimed that they went to the police station. CR.A/575/1989 10/10 JUDGMENT Yet, both of them do not communicate with each other. 17. The complainant states that after seeing the dead body, he covered it with a cloth. But, then, the body is recovered in circumstances which were not in consonance with the story. Thus, the version of the eye witness have been discarded by the Trial Court on rightful grounds. 18. Medical evidence though opines does not fit in the circumstances which the prosecution has tried to make out. The time of injuries does not correspond to the alleged time of the incident. A strong circumstance relied upon by the Trial Judge in our opinion is rightly so. 19. In our opinion, the treatment to the case given by the Trial Judge cannot be said to be such as to warrant interference, more particularly when we are dealing with an appeal against acquittal. The appeal deserves to be dismissed and accordingly it is dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar