CR.A/653/1999 1/64 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 653 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH sd/-. HONOURABLE MR.JUSTICE H.B. ANTANI sd/-. ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= CHIMANBHAI CHHAGANBHHAI GAMIT & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1 - 3. MS DS PANDIT, LD.ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE H.B. ANTANI Date : 17/10/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. The present appeal is preferred by the appellants-orig.convicts under Section 374 CR.A/653/1999 2/64 JUDGMENT read with Section 386 of the Code of Criminal Procedure, 1973, challenging the legality and sustainability of the judgment and order of conviction and sentence dated 05th June 1999 passed by the learned Additional Sessions Judge, Surat camp at Vyara, in Sessions Case No.109 of 1996, whereby the learned trial Judge has held appellant no.1-Chimanbhai Chhagabhai Gamit guilty for the offence punishable under Sections 323 and 504 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs.100/- on each count; in default of payment of fine, to undergo rigorous imprisonment for two months and three months respectively for both the offences. The learned trial Judge has further held appellant nos.2 and 3-orig. accused nos.2 and 3 guilty for the charge of offence punishable under Section 302 read with Section 114 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs.800/- each and in default of payment of fine, to undergo simple imprisonment for 4 months by each of them. CR.A/653/1999 3/64 JUDGMENT 2. Appellant no.1 is the father of appellant nos.2 and 3 and obviously, appellant nos.2 and 3 are the real brothers. The judgment and order of conviction and sentence is challenged on various grounds mentioned in paragraph no.2 of the memo of the appeal. At present appellant no.1-orig. accused no.1 is enjoying bail. 3. Heard Shri M.J. Budhbhatti, learned counsel appearing for the appellants and Ms.D.S. Pandit, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, at length. Firstly, it would be appropriate to state the facts of the case placed by the prosecution in brief so as to appreciate the evidence led by the prosecution and the arguments advanced. According to the prosecution, PW-2-complainant-Taraben widow of Nanubhai Chhagabhai along with her husband Nanubhai Chhagabhai (deceased) was at her residential premises situated in Pradhanwadi Faliya of village Bedchit, Tal. Vyara. That 10 days prior to 01st September 1995, which is the date of incident in question, there was some CR.A/653/1999 4/64 JUDGMENT hot exchange of words and the said Nanubhai Chhagabhai-husband of complainant had snubbed appellant no.1 for getting his bullocks grazed the rice crop from the field of Nanubhai Chhagabhai. Since then, the ill-feeling was there between the said two families. Appellant no.1 is the real brother of deceased Nanubhai Chhagabhai. On 01st September 1995 at about 07-30 p.m., the said Nanubhai Chhagabhai along with his family was in his house. At that time, appellant no.1 had gone there and started abusing Nanubhai and attempted to give stick blow. At that time, Nanubhai tried to escape but he was caught hold off by appellant nos.2 and 3. Appellant nos. 2 and 3 had brought axes with them from their house. Appellant no.2 inflicted 2 to 3 blows of axe on the head of Nanubhai. In the same way, appellant no.3 also gave two blows with the axe on the head of Nanubhai. According to prosecution, the complainant intervened in the quarrel; that too during the act of assault and at that time, appellant no.2 gave blow by reverse side of the axe to the complainant. The basic case of the prosecution is that CR.A/653/1999 5/64 JUDGMENT actually there were 4 accused persons. Dinuben-wife of appellant no.1, who was orig. accused no.4, was also there. She was also abusing Nanubhai as well as complainant; and she had also given kick and fist blows to Nanubhai as well as complainant. The injured Nanubhai was thereafter taken to hospital, where he succumbed to the injuries inflicted on his head. 4. It is alleged that Soma Chhagabhai, Chiman Chhagabhai (appellant no.1) and Gamanbhai Chhagabhai are three real brothers of Nanubhai Chhagabhai (deceased). Nanubhai was the youngest. All the four brothers were given agricultural lands by their father dividing the land owned and held by their father equally. Nanubhai had cultivated rice crop in the field. The field of Nanubhai was grazed by bullocks of appellant no.1 and on that very count, there was hot exchange of words between these two brothers and the first blow was given by appellant no.1 with stick when Nanubhai was trying to escape to save himself from the assault. The complainant, therefore, CR.A/653/1999 6/64 JUDGMENT shouted. At that time, orig. accused no.4 had reached at the spot and gave kick and fist blows. On account of hubbub, one Dalu Puniya Gamit reached the spot and tried to intervene and thereby, tried to save Nanubhai. At that time, appellant no.2 inflicted two blows with reverse side of the axe to the said Dalu Puniya Gamit; one on the head and another on the left hand. On arrival of other residents of Pradhanwadi Faliya, the accused persons fled away with weapons. The injured Nanubhai was lying there near the house of Manilal in an unconscious condition and from there he was shifted to hospital. 5. The complaint is lodged on 02nd September 1995 at about 04-15 a.m. with Vyara Police Station. The police started investigation and thereafter arrested the accused. The learned trial Judge at the end of trial, acquitted orig. accused no.4 from all the charges levelled against her, including from the charge of offences punishable under Sections 304 read with Section 114 of the Indian Penal Code. CR.A/653/1999 7/64 JUDGMENT 6. All the orig.accused were charged for the offence punishable under Section 135 of the Bombay Police Act, however, they have been acquitted from the charge of the said offence. There was no charge on any of the accused, including appellant no.2 for the act of giving blows with reverse side of the axe on the body of PW-Dalu Puniya Gamit. 7. Shri M.J. Budhbhatti, learned counsel appearing for the appellants, has taken us through the evidence of all the 14 witnesses examined by the prosecution, including two minor daughters of deceased and complainant namely PW-8 Shakeela and PW-10 Heena. 7.1 The injured PW-9-Dalu Puniya Gamit has turned hostile and has not supported the case of the prosecution. Nanubhai was found lying in an injured and bleeding condition near the house of one Manilal. However, the said Manilal has not been examined by the prosecution. On reading of the evidence of PW-4 Shukar Manilal and certain questions put to other witnesses examined, including the complainant, it CR.A/653/1999 8/64 JUDGMENT appears that the said Shukar Manilal is the son of Manilal. 7.2 According to prosecution, one PW-5-Mahesh Somabhai had reached the spot immediately after the incident. This PW-5 Mahesh is the real nephew of deceased Nanubhai and appellant no.1. This Mahesh Somabhai has been examined as PW-5 vide Ex.24. 7.3 Shri Buddhbhatti while developing his arguments has submitted that the learned trial Judge has wrongly placed reliance on the evidence of PW-2 Taraben and it was not safe to hold the appellants guilty on the evidence of either complainant or any other witness, more particularly, PW-5 Mahesh Somabhai; PW-8- Shakeela and PW-10-Heena. PW-2 Taraben has made a number of improvements creating contradictions in the basic story placed by the prosecution and PW-5 Mahesh has attempted to pose himself to be an eye-witness to the incident. Though none of the daughters of the complainant namely Shakeela and Heena, is named as witnesses to the incident, they have been introduced as eye-witnesses to the CR.A/653/1999 9/64 JUDGMENT incident. On account of this attempt made by the prosecution to implicate all the three appellants in a serious offence, a number of contradictions have emerged and the story of the prosecution has become improbable. 7.4 It is the duty of the prosecution to prove the case as placed and pleaded to the satisfaction of the Court and beyond all reasonable doubts. When neither PW-Dalu Puniya Gamit has supported the case of the prosecution nor the probable eye-witness Shukar Manilal has led any evidence which can be said to be incriminating against the appellants, the appellants were deserving acquittal. The learned trial Judge has ignored the basic principle of appreciation of evidence and has placed reliance on the evidence of partisan witnesses. 7.5 According to Shri Budhbhatti, the evidence of complainant-Taraben if is read, it clearly emerges that she may not have seen the incident or actual act of assault. The place of incident is comparatively far and there is nothing on record to show that the place of CR.A/653/1999 10/64 JUDGMENT incident can be seen which is near the house of Shukar Manilal from the doorsteps of house of complainant-Taraben. The map produced by the prosecution clearly suggests that a person standing at the house of complainant-Taraben cannot see the place where the deceased was lying in the injured condition. There is no evidence of presence of blood stains near the house of deceased or anywhere between the house of the deceased and the place where deceased was found lying in the injured condition. 7.6 The complainant-Taraben has attempted to introduce her two daughters as eye- witnesses to the incident and so also PW-5 Mahesh, real nephew of the deceased. This PW-5 Mahesh, as per the story of the prosecution, was not an eye-witness but he had reached to the spot after sometime and he was only a party in shifting Nanubhai to hospital after making certain arrangements. No mark of violence was found on the body of the complainant. So the theory placed by her that she was present when Nanubhai was assaulted and the assault made on CR.A/653/1999 11/64 JUDGMENT her by orig.accused no.4 gets falsified. The evidence of this witness PW-2 Taraben is in conflict with the evidence given by PW-5 Mahesh and also the evidence of daughters of complainant i.e. PW-8 Shakeela and PW-10 Heena. If this conflict in evidence or disharmony in evidence of these four witnesses i.e. PW-Taraben, PW-Mahesh, PW-Shakeela and PW-Heena, leaving the hostile witness PW-9 Dalu Puniya, is scanned closely, it is possible to observe that the evidence of PW- Taraben does not get corroboration which can be said to be sufficient in the eye of law. 7.7 By reading evidence of PW-Taraben, Shri Budhbhatti has pointed out that PW-Taraben was not aware about the event which might have taken place immediately prior to the assault made on Nanubhai. The victim was Nanubhai as his field was grazed and when it is the say of PW-Taraben that Nanubhai had not taken the incident of getting his field grazed seriously and had felt satisfied by some words to his elder brother i.e. appellant no.1, there was no scope for the accused to rush to the CR.A/653/1999 12/64 JUDGMENT residence of Nanubhai. Nobody from the neighbourhood has been examined that appellant no.1 alone initially had gone to the resident of Nanubhai and was giving abuses to him. This witness i.e. PW-2 Taraben has made material improvement saying that Nanubhai was called outside his house by appellant no.1 saying that he i.e. Nanubhai, has become smarter and, therefore, he (appellant no.1) would punish him (Nanubhai). The conversation which had taken place between Nanubhai and appellant no.1 at the doorsteps of the house of Nanubhai communicated by PW-2-Taraben is a material improvement and no such story is found in the complaint given by PW-2-Taraben. 7.8 The story of involvement of orig. accused no.4-Dinuben narrated by this witness has not been believed by the learned trial Judge. 7.9 Though it is claimed by PW-5-Mahesh that he is an eye-witness to the incident, according to PW-Taraben, he had reached to the spot only after the incident. Though according to PW- Taraben, PW-Shukar Manilal was not an eye- witness, the prosecution has examined Shukar CR.A/653/1999 13/64 JUDGMENT Manilal as an eye-witness to the incident. As mentioned earlier, though none of the two daughters of PW-2-Taraben has been described as an eye-witnesses in the complaint, they have been introduced as eye-witnesses to the incident by PW-Taraben. She has admitted in her cross-examination that there are two houses between her house and the house of Shukar Manilal; and the map produced by prosecution shows that on the opposite side of the house of PW-2 Taraben, near the house of Shukar Manilal, the injured Nanubhai was lying. 7.10 It is not the case of the prosecution that the deceased Nanubhai was physically able to narrate the incident and it is also not the case that the accused were named by Nanubhai at any point of time prior to he succumbed to the injuries. It is claimed by PW-Taraben that at the time of incident, her two daughters i.e. PW-Shakeela and PW-Heena and PW-Mahesh as well as herself were already there near the house of Shukar Manilal and, therefore, there was no reason to rush to the open land CR.A/653/1999 14/64 JUDGMENT (Aangan) of Shukar Manilal. Meaning thereby, it is the say of PW-Taraben that all the four are eye-witnesses to the incident but this story is found unreliable if the evidence of PW-Mahesh and two daughters of complainant, is evaluated closely. On the contrary, she has admitted that when they reached in the open land (Aangan) of Shukarbhai Manilal, Nanubhai- her husband was lying there. They had raised shouts and thereafter the people residing in the neighbouring area had gathered. Initially this witness has attempted to state that Manilal is residing separately, but thereafter she has admitted that Shukarbhai and Manilal, father and son, are residing in one house only. 7.11 The number of blows narrated by PW-Taraben is not corroborated by the medical evidence. It is stated by this witness in her examination- in-chief that appellant no.2 had inflicted four blows with axe on the head of the deceased. According to the complainant, appellant no.3 had inflicted blows with axe on the head of the deceased. When these blows CR.A/653/1999 15/64 JUDGMENT were being inflicted, Nanubhai was caught hold off by orig.accused no.4-Dinuben. At that time, this PW-Taraben had intervened. The implication of orig.accused no.4-Dinuben of catching hold off Nanubhai, has not been believed by the learned trial Judge. The story told by this witness in the examination-in- chief that Nanubhai was caught hold off by orig.accused no.4 is found to be of material improvement to implicate orig.accused no.4 in a serious offence. She has denied the suggestion that appellant nos.2 and 3 have not inflicted blows with axe on her husband. But none of the daughters of the complainant has stated in her deposition that appellant no.3 had assaulted Nanubhai with axe or he had inflicted axe blow to Nanubhai. Meaning thereby, when PW-Taraben is not getting corroboration qua involvement of appellant no.3 in the incident with axe in his hand or any overt act by appellant no.3 with axe in the entire incident, the learned trial Judge ought to have discarded the evidence of this witness, stating that if the version of this witness Taraben is believed, the basic case of CR.A/653/1999 16/64 JUDGMENT the prosecution will not be able to stand on its own legs. 7.12 When it emerges that something must have happened with Nanubhai immediately prior to the incident, it may be with accused persons or any one of the accused, or any third person, but the prosecution has not remained successful in unfolding that part of story. The conflict in medical evidence qua number of blows inflicted on the head of the deceased makes the version of PW-Taraben not only doubtful but it was possible for the learned trial Judge to say that PW-Taraben must not have seen the incident. For the reasons best known to him, though the case of the prosecution is that PW- Shukar had seen the incident, PW-Taraben had never attempted to state with clarity that PW- Shukar had witnessed the incident. The time of incident does not indicate that Shukar and his family members might have gone to bed. This Shukar has been examined as eye-witness to the incident but has not supported the case of the prosecution. It was possible for the CR.A/653/1999 17/64 JUDGMENT prosecution to lead convincing evidence through this Shukarbhai Manilal. When the case was resting practically on the sole evidence of PW-Taraben, the learned trial Judge ought not to have held all the three appellants guilty. 7.13 Here it will be appropriate to refer to the nature of visible injuries found on the body of the person deceased as mentioned in the postmortem note, which are as under : “(1) Stitch wound on Lt side of the hand about 7 complainant. (5 cotton) stitch oblique just part to Lt. Ear. Above about 5 c.m. (2) Stitch wound on Rt side of gentially on head “Cotton stitches about 13 c.m. oblique shape. (3) C.L.W. about 3x1 c.m. x bone deep posit. to Rt. Depressed fracture Temporal Bone palpable. CR.A/653/1999 18/64 JUDGMENT (4) Stitched wound on Rt. Side of the head near IInd injury. (2) cotton stitched wound about 2 c.m. Oblique. (5) Stitch wound Rt. And 4 stitched cotton oblique about 5 c.m. after around all stitch wound shows C.L.W. in midline Bone Deep.” 7.14 Considering the gravity of the aforesaid injuries, it emerges that the first blow must have been inflicted when Nanubhai was at the very spot where he was lying in an injured condition. No injury was found by the Doctor on any other part of the body than head. One Contused Lacerated Wound (CLW) found on the head was of 3 cms. x 1 cm. bone deep near right ear and that one had caused depressed fracture of temporal bone. So if any blow inflicted with stick by appellant no.1 was there on the head, that could be only this CLW described in the postmortem note; but with that one the deceased could not have reached near the house of Shukar and other spot could have been found at the doorsteps of house of deceased Nanubhai. This makes one thing clear CR.A/653/1999 19/64 JUDGMENT that no incident of assault had occurred when the deceased was either in the house or at the doorsteps of his house. The presence of PW- Taraben and two daughters can be said to be probable or natural in or near their house. So the prosecution story ought to have been held as unreliable so far as initiation of quarrel or assault is concerned. It is clear that something must have happened which can be said to be sudden or spontaneous when Nanubhai was assaulted. The element of pre-meditation of assaulting deceased, more particularly with an intention to kill him, according to Shri Budhbhatti, is found improbable. In that situation, the Court ought not to have held any of the appellants guilty for the charge of offence punishable under Section 302 of the Indian Penal Code. 7.15 The evidence of PW-Shukar Manilal does not help the prosecution because he has not supported the case of the prosecution. It emerges clearly that PW-Mahesh is not an eye- witness to the incident and he has rushed to the spot after the incident and it is not the CR.A/653/1999 20/64 JUDGMENT say of this witness that he had seen the accused persons fleeing away from the spot. On the contrary, he has posed himself to be an eye-witness which is not even the case of PW- Taraben in the complaint lodged before the police. The complaint is lodged after some hours. The complainant at least could have stated that Mahesh-real nephew of Nanubhai i.e. son of eldest brother of Nanubhai, is an eye-witness to the incident. 7.16 PW-8-Shakeela, one of the daughters of the complainant, has not attributed any overt act with Axe to appellant no.3; and PW-10-Heena has not attributed any role which can be said to be a role for which appellant no.3 could have been held responsible under Section 114 of the Indian Penal Code and hence, Appellant No.3 was required to be acquitted by the learned trial Judge. When both appellant nos.2 and 3 are implicated in the offence for giving blows with axe and when it is the say of complainant that one of them had inflicted 4 blows and another was also inflicting blows with axe, the learned trial Judge ought to CR.A/653/1999 21/64 JUDGMENT have acquitted all the four accused saying that PW-Taraben-complainant has given exaggerated version though she is not an eye- witness to the incident to implicate all the four members of family of appellant no.1 in such a serious offence, merely on the ground that there was some hot exchange of words prior to 10 days of the incident in question between Nanubhai (deceased) and appellant no.1, it is very likely that some persons for their own reasons might have assaulted Nanubhai and the complainant being unaware about the entire thing which might have taken place with Nanubhai, and the complainant would have presumed that the incident occurred prior to 10 days may be the cause of the assault and, therefore only, she posed herself to be an eye-witness and implicated the accused. 7.17 It is further submitted by Shri Buddhbhatti that as per the basic story of the prosecution, appellant no.1 was holding stick and appellant nos.2 and 3 were holding axes. The orig. accused no.4 was not holding any CR.A/653/1999 22/64 JUDGMENT weapon. The evidence led by the prosecution itself creates shadow of doubt qua the involvement of appellant no.3 because two eye- witnesses examined i.e. PW-8 Shakeela and PW- 10 Heena, daughters of deceased, have not involved appellant no.3-Nitin in the incident by any overt act, more particularly of inflicting the axe blow on the head or any other part of the body of Nanubhai. Even though surprisingly two axes have been recovered by the police. Both, according to prosecution, were stained with blood and as per the report of serological examination of both the axes, the same were found stained with human blood of Group 'B'. The earth collected from the spot as well as the clothes of the deceased were also found stained with human blood of Group 'B'. 7.18 The prosecution, thus, has failed in establishing the case as per the substratum of the story and, therefore, all the accused deserve benefit of doubt. When appellant no.1 has been acquitted from the charge of offence punishable under Section 302 read with Section CR.A/653/1999 23/64 JUDGMENT 114 of the Indian Penal Code and has been held responsible for the offence punishable under Sections 323 and 504 of the Indian Penal Code and orig.accused no.4-wife of appellant no.1 herein, has been given fair acquittal though a specific role has been assigned to her by the complainant, and the version of the complainant has not been believed qua the active participation of orig.accused no.4 in the incident, her version ought not to have been accepted as reliable qua other three accused persons also. For short, the appeal is required to be allowed by quashing and setting aside the judgment and order of conviction and sentence under challenge. 8. Ms.D.S. Pandit, learned Additional Public Prosecutor, has concentrated her arguments mainly on the medical