CR.A/58819/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 588 of 1987 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 AHER VIJSUR DHAND ISHWARIA & OTHERS ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant Ms NITA C BANKER for the Opponents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/08/2008 CR.A/58819/1987 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) This appeal under Section 378 of the Code by the State of Gujarat is directed against the judgment and order dated 11.05.1987 passed by the Additional Sessions Judge, Junagadh in Sessions Case No. 105 of 1986. The prosecution case relevant for the purpose of the appeal in brief is that on 11.07.1986 at about 6:00am Badhabhai Virabhai and his mate Jaskubhai had gone to the field of Badhabhai for tilling. When they were working in the field, cattle belonging to the accused persons strayed into the field and started grazing on the standing crop. Seeing this, Badhabhai went towards the cattle, shooed them from his field and asked accused Vajsur who was standing at the edge of the field to be careful. Accused Vajsur got angry on being so told and gave a blow with a dhariya. Badhabhai managed to ward off the blow but his right thumb got sliced by the sharp edge of the dhariya. Accused Vajsur exhorted his son, Kathad, who was standing nearby to attack Badhabhai and thereupon, Kathad came running and gave one blow with his spear on the right side of Badhabhai’s abdomen. He gave another blow with the spear on the left side of abdomen, which blow pierced the body of Badhabhai. Because of the injury, Badhabhai fell on the ground. Then accused Kunwarben gave two-three blows with a stick on the body of Badhabhai. In the meantime, Jaskubhai and Dadhubhai (brother of Badhabhai) came to the spot and on seeing them, the assailants ran away. Jaskubhai removed the spear from the abdomen of Badhabhai. Intestines were coming out of the wound and so they tied a cloth round the body. Badhabhai was thereafter taken to his house in a bullock-cart and from there was shifted to the hospital where he was subsequently CR.A/58819/1987 3/6 JUDGMENT operated. A complaint of the incident was lodged by Dudhabhai and the police after investigation charge-sheeted all the accused. Aher Vajsur Dhana, Kathad Vasjsur and Kunwarben Vajsur were tried by the Sessions Court on the charges under Sections 307, 323, 447, 504 read with Section 34 of the Penal Code and acquitted. Assailing the judgment and order of acquittal, Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State argued that Dudhabhai (PW-4), Jaskubhai (PW-6) and Badhabhai (PW-8) were examined by the prosecution as eye-witnesses. They have supported the prosecution and narrated the prosecution version. Witness Badhabhai is an injured witness and his presence at the scene of occurrence cannot be doubted. When he has named the assailants, it cannot be said that he would give up the real assailants and falsely implicate innocent persons. The evidence of an injured witness has greater evidentiary value and unless compelling reasons exist, their statements should not be lightly discarded. He has submitted that the evidence of Badhabhai is corroborated by the evidence of other eye-witnesses as well as the medical evidence. No good reasons have been given by the learned Sessions Judge for discrediting the evidence of these witnesses. He has submitted that the Trial Judge has proceeded on conjectures and that there is no scope for any doubt that the prosecution version is true. He has elaborated his submissions by referring to the evidence on record and urged that the order of acquittal be set aside. The learned Advocate appearing for the respondents while supporting the judgment of the Sessions Court has also referred to several other relevant features which would support the conclusion that the incident has not happened in the manner alleged by the prosecution CR.A/58819/1987 4/6 JUDGMENT and that the true and correct account of what transpired and the circumstances under which Badhabhai sustained the injuries have not been clearly established. The learned counsel also referred to the evidence of Dr. Malviya (PW-7), who operated Badhabhai and Pravinchandra Vrajlal (PW-1), Circle Inspector who prepared map of the site of occurrence and argued that the prosecution version is wholly unbelievable that there is suppression of material evidence and the prosecution case has been rightly discarded by the Sessions Court and no interference is called for. We have carefully considered these arguments and have gone through the entire evidence of record. We agree with the Sessions Court that the prosecution has not proved the case beyond reasonable doubt. The learned Sessions Judge was right in acquitting the accused and no interference is called for. The testimony of Jaskubhai appears to be highly artificial and does not fit in with human probabilities. He had accompanied Badhabhai to the field in the morning and was around him when Badhabhai went to remove the trespassing cattle. He claims to have seen the assault and yet did not do anything to save Badhabhai. Dudhabhai is a chance witness but the reason given by him for his presence there is not very believable. Jasku states that Dudhabhai had left with him and Badhabhai at 6:00am and shortly before the incident had gone to an adjoining field for some work. Dudhabhai, on the other hand, states that he did not leave the house with his brother at 6:00am but left around 7:30am. He also denies going to the field prior to the attack on Badhabhai. There is also ambiguity as regards the actual place of occurrence. Budhabhai states that he had attacked when he was standing about 4 feet inside his field and had fallen down there. Jasku also talks about Budhabhai falling CR.A/58819/1987 5/6 JUDGMENT down about 4 feet from the edge of the field. However, the site map shows that Budhabhai had fallen down after receiving injuries at a place which is about 37 feet from the edge of the field. Also, the site panchnama drawn shortly after the incident does not show any sign of grazing or damage to standing crop as stated by Budhabhai and Jasku. Even the medical evidence is at variance with the ocular evidence. Whereas all the eye-witnesses talk about accused no. 2 giving two blows with spear on the abdominal region of Badhabhai – one on the right side and other on the left side, the medical evidence shows only one stab wound entering from the left side, piercing the body and exiting from the right side of the abdomen. Thus, the evidence of all the eye-witnesses is contrary to the medical evidence. This raises serious doubts as regards the credibility and trustworthiness of the evidence of these witnesses. Further, the doctor examined by the prosecution has also opined that coming out of intestines from the wound could have happened because of pulling out of the spear or even due to movement of spear while shifting the injured to the hospital. The doctor has further opined that but for the internal injury, the external injury otherwise is of a simple nature. Therefore, the medical evidence is inconclusive as to whether the injury was sufficient in the ordinary course of nature to cause death of the victim. The eyewitness account of the incident as rightly pointed out by the Trial Court does not reveal the truth and the genesis of the incident is shrouded in mystery. Material part of the incident relating to the attack by the accused persons is twisted or suppressed and reasonable doubt arises as to the circumstances under which the victim received the wound on his abdomen. We, therefore, find ourselves unable to accept the contentions of the appellant and set aside the order of acquittal passed by the Sessions Court. In our view, no interference with the CR.A/58819/1987 6/6 JUDGMENT judgment of the Sessions Judge is called for. In the result, the appeal is dismissed. Bail bonds stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd