CR.A/441/2000 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 441 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= SOMABHAI RANCHHODBHAI DHOLIYA PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MRS SHILPA R SHAH for Appellant(s) : 1, MR HL JANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/441/2000 2/18 JUDGMENT 1.On a trial being conducted against the present appellant-original accused for the offence punishable under Secs.302 and 504 of Indian Penal Code, the appellant was convicted for the offence under Sec.302 and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.1000/-, in default, to undergo rigorous imprisonment for a further period of three months by the learned Addl. Sessions Judge, Valsad at Navsari, vide judgment and order dated 30-3- 2000. The appellant was also given benefit of set off. Being aggrieved therewith, present appellant has preferred the present appeal. 2.The facts of the prosecution in short are that on 7-5-1997, the complainant Rakesh, his father Natubhai and mother Jashuben were in their field doing agricultural work. Meanwhile, his father went to fetch water from a canal situated nearby. At that time, a quarrel took place between the deceased and one Somabhai Ranchhodbhai-appellant. During the process, the appellant gave dharia blow CR.A/441/2000 3/18 JUDGMENT to Natubhai as a result of which, he fell down. On hearing the shouts, son of the deceased i.e. the complainant and his mother went to the place of incident where they saw the deceased lying in a pool of blood. Therefore, he called nearby neighbours in the field and thereafter went to Chikli Police Station where he lodged the complaint against the present appellant. Said complaint has been registered as Chikli Police Station I.C.R.No.62 of 1997 for the offence under punishable Section 302 of IPC. The Investigating Officer therefore came to the scene of offence, called the panchas and drew inquest panchnama in presence of panchas, filled up Marnottar form and also made arrangements to send dead body of the deceased for performing post mortem to Chikli Hospital by preparing a yadi. He also drew panchnama of scene of offence in presence of panchas and also recorded statements of various witnesses. He also made search for the accused and the accused was CR.A/441/2000 4/18 JUDGMENT arrested by preparing a panchnama. The accused expressed willingness to show the weapon alleged to have been used in the crime in question and hence, when the accused was taken to the place where the weapon was hidden, it was seized under a panchnama under Sec.27 of the Indian Evidence Act. He sent the muddamal to FSL for analysis. He also collected post mortem report and on receiving the FSL report, same were kept in the investigation file. At the end of investigation, the I.O. submitted the charge sheet against the accused in the Court of learned Judicial Magistrate (First Class), Chikli. 3.As the offence alleged against the accused was exclusively triable by the Court of Sessions, learned Judicial Magistrate (First Class), Chikli, committed the case to the District and Sessions Court, Valsad at Navsari, where it was numbered as Sessions Case No.87 of 1997. The same was handed over to the learned Addl. Sessions Judge, Valsad CR.A/441/2000 5/18 JUDGMENT at Navsari for disposal on merits. On production of the accused, learned Addl. Sessions Judge framed charge against the accused. The accused pleaded not guilty to the charge and prayed for trial. 4.To prove the charge against the accused, prosecution examined in all 8 witnesses namely, Rakeshbhai Natubhai, P.W.1, Ex.7; Dhirubhai Chhayalabhai, P.W.2, Ex.9; Naginbhai Bhagabhai Patel, P.W.3, Ex.11; Jashuben Natubhai, P.W.4, Ex.14; Tejasbhai Kantubhai, P.W.5, Ex.15; Pravinbhai Maganbhai Patel, P.W.6, Ex.16; Dr.Vrajlal Kanjibhai, P.W.7, Ex.17 and Hemantsinh Bhagvanbhai Vala, P.W.8, Ex.21. The prosecution also produced and proved various documentary evidence namely, complaint Ex.8, inquest panchnama Ex.13, panchnama of clothes found on the dead body of the deceased Ex.6, panchnama of scene of offence Ex.10, panchnama of recovery of weapon at the instance of accused Ex.12, medical certificate Ex.38; post mortem note Ex.19, FSL report Ex.22, etc. CR.A/441/2000 6/18 JUDGMENT 5.On submission of closing pursis by the prosecution, learned Addl. Sessions Judge recorded further statement of the accused under Sec.313 of Cr.P.C. qua incriminating evidence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Addl. Sessions Judge, Valsad at Navsari, delivered the impugned judgment and order of conviction and sentence giving rise to prefer the present appeal. 6.We have heard learned counsel for the appellant Ms.Shilpa R.Shah and learned APP for the respondent-State, Mr.H.L.Jani. 7.Ms.Shilpa Shah has taken us through the oral evidence of Rakeshbhai Natubhai, son of the deceased, P.W.1, Ex.7; mother of the complainant, who is the wife of the deceased Jashuben, P.W.4, Ex.14 as well as through the oral evidence of child witness, Tejasbhai Kantubhai, P.W.5, Ex.15, who was aged about 9-10 years at the time of incident. She has CR.A/441/2000 7/18 JUDGMENT also taken us through the evidence of hostile witness, Pravinbhai Maganbhai Patel, P.W.6, Ex.16 together with the evidence of panchas and Medical Officer, Dr.Vrajlal Kanjibhai, of Referal Hospital and Community Health Centre, Chikli, P.W.7, Ex.17. 8.For the purpose of proving aspect of homicidal death, prosecution has relied upon inquest panchnama, evidence of Dr.Vrajlal Kanjibhai and post mortem note Ex.19. It is established from the post mortem note as well as evidence of Dr.Vrajlal Kanjibhai and also from the relevant discussion made in the judgment that it is a case of homicidal death. The doctor has also opined after seeing the muddamal dharia that the injuries received by the deceased are possible by way of muddamal dharia. Not only that, cause of death as shown in the post mortem note also supports his say. Apart from that, learned counsel for the appellant has also not disputed regarding the aspect of homicidal death. We are therefore not entering further CR.A/441/2000 8/18 JUDGMENT in that regard but we concur the view taken by the court below that death of the deceased was homicidal. 9.As far as other aspects of the matter are concerned, learned counsel for the appellant has argued that though prosecution witnesses Nos.1 and 4 namely, Rakeshbhai Natubhai and Jashuben Natubhai claim themselves to be eye witnesses, they are not the real eye witnesses as they have come to the place of incident after occurrence of the incident. 10.Drawing our attention towards the evidence of prosecution witnesses Nos.2 and 4, it is argued that distance between the scene of offence and the place from where they were working is about 1 km. Taking us through the evidence of minor witness, Tejasbhai Kantubhai, P.W.5, Ex.15, it is argued that the evidence of Tejasbhai discard the presence of prosecution witnesses Nos.2 and 4 at the scene of offence at the relevant point of time. However, according to her, CR.A/441/2000 9/18 JUDGMENT Tejasbhai Kantubhai, P.W.5, Ex.15, is a chance witness. 11.Drawing our attention towards the panchnama of scene of offence, it is argued that there were sugarcane crops on all four sides which were at a ripe stage. Even if it is presumed that the prosecution witnesses Nos.1 and 4 were there in their respective field, then also, they would not have been not in a position to see the incident due to the existence of standing ripe sugarcane crops on all four sides. If they had reached at the scene of incident, the accused could not have escaped from the scene of offence at that time. 12.Learned APP, Mr.Jani, has taken us through the evidence of aforesaid prosecution witnesses and argued that prosecution is able to prove the guilt against the accused beyond reasonable doubt through prosecution witnesses Nos.1 and 4 supported by the evidence of Tejas. There are other evidence CR.A/441/2000 10/18 JUDGMENT on record supporting the say of the prosecution. Since the impugned judgment and order of conviction and sentence is well reasoned detailing all the aspects of the matter, it does not require any interference. 13.We have also gone through the oral as well as the documentary evidence shown to us by the learned counsel for the respective parties along with the impugned detailed judgment. 14.For the purpose of deciding this appeal, the evidence of P.W.1, Rakeshbhai Natubhai, Ex.7, who is the son of the deceased, is required to be first gone into. As per his evidence, at the time of incident, he, his father and mother were in the field. His father went to fetch water from the canal while he and his mother were in the field. It is established from his evidence that the distance between the canal i.e. scene of offence and the place where they were working is about 1 km. It is also established that all the fields were CR.A/441/2000 11/18 JUDGMENT covered with sugarcane crops and they were at ripe stage. This witness has deposed in para 2 of his examination-in-chief that at the time of incident, they were in the field. However, in para 3 of his chief examination, he has categorically deposed that when they reached the scene of offence, his father was lying on the ground and accused had escaped. He has further deposed that his father succumbed to the injuries on the spot. He has further deposed that thereafter he called his uncle and neighbour and thereafter, he went to Chikli Police Station and filed the complaint. He was thoroughly cross examined by the learned counsel for the appellant in the court below wherein he has admitted that he was working as a diamond cutter. He has also admitted that distance between the canal and the field where he was working is about 800-1000 ft. i.e. about 1 km. In para 5, he has admitted that all the fields were of sugar cane crops and same had reached the ripe stage. He has also admitted that the CR.A/441/2000 12/18 JUDGMENT distance between the place of incident and the place where they were working is about 1 km. At that time, he and mother were working in the field. He has also admitted that when he went there, he saw that his father was lying in injured condition and there was no other person around and hence, he called his mother. He has further admitted that it is he who first went to the scene of offence and his mother came there later on. It is further admitted that when he called his mother, his father had already succumbed to the injuries. He has further admitted that his complaint has been recorded by the Police at 10.00 p.m. He has lastly deposed that at the time of incident, his father had worn bush shirt and half pants. 15.Next important witness is Jashuben Natubhai, P.W.4, Ex.14. She has deposed in her deposition that the incident in question has taken place at about 2.00 p.m. At that time, she and her son were working in their field and deceased Nathubhai went to fetch water to CR.A/441/2000 13/18 JUDGMENT the canal. She has further deposed that she was the witness of incident. She has further deposed that after the incident, Somabhai washed dharia and his clothes and fled from the scene of offence. In her cross- examination, she has admitted that her son reached to the scene of offence prior to her. It is further admitted that when she reached, only Rakesh was there. Except that, she has not deposed further. 16.The material point coming out of her evidence is that she is claiming to be an eye witness. She has narrated that she has seen the incident. However, if we compare her evidence with that of Rakesh taking into consideration the distance of 1 km. between their place of work and the place of incident, it creates some doubt in the mind of Court inasmuch as she or her son would not be able to see the incident from taking place from the field situated at a distance of 1 km. through the standing ripe tall sugarcane crops. According to us, the testimonies of CR.A/441/2000 14/18 JUDGMENT both the above witnesses create doubt about their having witnessed the incident. 17.Apart from the evidence of afore referred two witnesses, evidence of Tejasbhai Kantubhai, P.W.5, Ex.15, who is also claiming to be another eye witness, is worth noting at this stage. Since he is a child witnes aged about 9-10 years at the time of incident, his deposition was in the form of question-answer form but practically all questions are of leading nature. In the last question, he has categorically deposed that after Somabhai had fled from the scene of offence, wife of victim and other person reached there. In para 2 of his evidence, he has deposed that generally he used to go for gracing his cattle in the morning. However, on that day, as his school was closed, he went to grace his cattle in the afternoon. He has admitted that usually he used to grace his cattle in a grass field or barren land. He has also admitted that the crops in his field also were of sugarcane. He has also pleaded CR.A/441/2000 15/18 JUDGMENT ignorance about the directions. He has admitted that the sugarcane crops have reached at the ripe stage. There were no other things requiring consideration from his deposition. 18.Out of the aforesaid witnesses examined by the prosecution, the prosecution witnesses Nos.1 and 4 are son and wife of the deceased respectively while prosecution witness No.5 is the minor child and a chance witness. 19.We have gone through the evidence of all the three witnesses including their cross- examination, relevant portion of which has been narrated by us hereinabove. On a comparison of their evidence in its entirety, we are of the opinion that they are running contrary to each other. However, the main aspect worth noting is about the distance between the scene of offence and the place where the prosecution witnesses Nos.1 and 4 were working which is about 1 km. It is also worth noting that the area is surrounded by CR.A/441/2000 16/18 JUDGMENT sugarcane crops on all four sides. Therefore, they would not be able to witness the incident from taking place. Hence, it is to be presumed that they would not have seen the incident in view of the fact that they have reached the place of incident after occurrence of the incident at which point of time, the deceased was lying in injured condition. 20.In view of the above, we are unable to accept the testimonies of all the above three witnesses that they have seen the incident or having reached at the place of incident on having heard the shouts of the deceased. Even if it is believed that they heard the shouts at a distance of 1 km. then also, it will take some time to reach at such a distance because they have to cross through the sugarcane crops standing in the field. Therefore the theory of hearing the shouts of the deceased at such a distance of 1 km. and seeing the person assaulting Natubhai is not believable. CR.A/441/2000 17/18 JUDGMENT 21.In view of the above, according to us, evidence of all the above witnesses including Tejas, P.W.5, create doubt in the mind of the Court. Once a doubt has been created, benefit should accrue to the accused and not to the prosecution. Since the prosecution has not been able to prove the guilt against the accused beyond reasonable doubt, other evidence being corroborate piece of evidence are not being discussed. 22.It is also required to be noted that the appellant had already undergone more than 10 years of imprisonment. 23.Apart from the above, there is also a delay of nearly seven hours in lodging the FIR and no satisfactory convincing explanation is forthcoming from the evidence appearing on record for such a delay. 24.Considering the facts and circumstances narrated hereinabove, we are of the opinion that the prosecution has not been able to prove the guilt against the accused beyond CR.A/441/2000 18/18 JUDGMENT reasonable doubt. Therefore, the impugned judgment and order of conviction as passed by the learned Addl. Sessions Judge, Valsad at Navsari in Sessions Case No.87 of 1997 is required to be quashed and the sentence awarded to the appellant is required to be set aside. 25.Thus, this appeal is allowed. Judgment and order of conviction and sentence dated 30-3- 2000 passed in Sessions Case No.87 of 1997 by the learned Addl. Sessions Judge, Valsad at Navsari, is quashed and set aside and he is ordered to be acquitted. He is therefore ordered to be set at liberty forthwith, if not required in any other offence. (R.P.DHOLAKIA,J) (K.S.JHAVERI,J) radhan/