STATE OF GUJARAT v. THAKARDA MAFAJI TALAJI — 1980 DIGILAW 7 (GUJ)

M. K. SHAH, V. V. BEDARKAR, J. ( 1 ) THIS is an appeal from an order of acquittal passed by the learned Sessions judge Mehsana in sessions case No. 21 of 1977 on 26th May 1977 wherein 26 accused persons stood their trial for the offences under secs. 302 read with sec. 149 or in the alternative under secs. 149 323 and sec. 323 read with sec. 149 I. P. C. and sec. 135 of the Bombay Police Act as also secs. 143 144 147 148 452 427 and 427 read with sec. 149 332 332 read with sec. 149 I. P. C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 2 ) MR. Chhaya the learned Public Prosecutor appearing for the State has taken us through the voluminous evidence on record and he has submitted that in view of the cogent reliable and consistent evidence showing that accused Nos. 1 2 and 8 had caused injuries to deceased Manaj by means of Dharia (accused No. 1) and swords (accused\nos. 2 and 8) the learned sessions Judge ought to have atleast convicted the said three accused for the offence under sec. 302 read with sec. 34 or with 114 of the Indian Penal Code even if the story with regard to the formation of the unlawful assembly with the common object of committing murders of Manaji and others is not believable. ( 3 ) MR. Chhaya drew our particular attention to the fact that so far as the injury by means of Dharia alleged tn have been inflicted by accused No. 1 on the deceased is concerned as many as five prosecution witnesses who are themselves injured during the course of the incident deposed to the same and there is medical evidence showing that the injury which could be caused by a sharp cutting instrument like a Dharia was there on the person of the deceased. The witnesses referred to are Karasnji p. w. 2; Somaji p. w. 3; Parbatiji p. w. 5; Mangaji p. w. 12 and Rupaji p. w. 4. Similarly further submits Mr. Chhaya with regard to the injury alleged to have been caused by accused No. 2 by means of a sword on the deceased the said five witness also deposed to that effect and the same also is the position with regard to the assault alleged to have been caused by means of sword by accused No. 8 on the person of the deceased. ( 4 ) IT is true these five prosecution witnesses are consistent in their say that the said three accused that is accused Nos. 1 2 and 8 caused injuries by means of a dharia and swords on deceased Manaji. But so far as the medical corroboration is concerned it would be significant to note that Dr. Yogesh S. Hathi Assistant Medical Officer attached to the Civil Hospital Ahmedabad who had examined and treated the deceased when he was brought from Visnagar to Ahmedabad on the night of 30th October 1976 does not refer to any incised wound having been found on the skull or the head of the deceased. There was only multiple C. L. Ws. on scalp tissue and one incised wound on the right side of the forehead which was muscle deep. All other incised wounds were either on leg or arm and on the gluteal region. Mr. Chhaya in this connection drew our attention to the evidence of Dr. Devendra Dave Medical Officer attached to the General Hospital at Visnagar who had examined the deceased at about 7 p. m. on the day of the incident. He does refer to an incised wound scalp deep over right parietooccupital region and one incised wound on the right parietal region as also one incised wound scalp deep on occipital region. But in view of the conflict between the medical evidence it would be difficult to hold that there were any such incised wounds as the injuries as noted by Dr. Hathi read along with the post-mortem notes reveal that they are likely to be mere C L. Ws. This therefore creates a doubt and the benefit of that doubt as a matter of course must go to the accused. Hathi read along with the post-mortem notes reveal that they are likely to be mere C L. Ws. This therefore creates a doubt and the benefit of that doubt as a matter of course must go to the accused. ( 5 ) BUT the fatal blow which the prosecution has received in the instant case is from the fact that none of the prosecution witnesses explained the injuries which are found on the persons of as many as 7 accused. There cannot be any doubt that these injuries were received either in the course of the same incident or at about the time when the incident is alleged to have happened. These injuries were noted at the hospital by the doctor much earlier than the time when the deceased and other injured persons were taken to the hospital at Visnagar. As a matter of fact as the evidence of Dr. Devendra Dave shows when the P. S. I. came along with the injured the doctor was actually treating these accused persons and it is therefore not possible to believe that these injuries could not be noted or seen by the prosecution witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 6 ) SOME of the accused as is evident from the evidence were seriously injured. This is therefore not the type of case in which the prosecution witnesses even if they were present at the time of the incident would miss these injuries because the injuries were writ large so prominently on the persons of the accused; and yet we find none of the prosecution witnesses including headconstable Jalwantrao has cared to explain these injuries on the persons of as many as 7 accused-persons to whom as per the prosecution witnesses major role in committing the assault and causing injuries to the deceased and other injured witnesses is assigned. ( 7 ) ONE of the witnesses viz. Somaji P. W. 3 to whom a specific question was put about the injuries on the accused went to the length of denying the same. ( 7 ) ONE of the witnesses viz. Somaji P. W. 3 to whom a specific question was put about the injuries on the accused went to the length of denying the same. Thus the prosecution witnesses have not only failed to explain the injuries but have gone to the length of denying the same when specifically pointed out to them. As observed by the Supreme Court in LAXSHMI SINGH AND OTHERS ETC. V. STATE OF BIHAR 1976 CRIMINAL LAW JOURNAL 1736 :-"non-EXPLANATION of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the Following inferences :- (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who has denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution. ; And as further observed by the Supreme Court in the said case at page 1942-"the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. " ( 8 ) IN the case at hand it would be seen that the injuries to as many as 7 accused were caused and these injuries cannot be brush d aside as minor or superficial and yet the prosecution witnesses have failed to explain the same and some witnesses have gone to the length of denying the same when specifically put to them. Again the witnesses except head constable Jaywantrao who has not been able to say anything about the assaults on the deceased and the witnesses by a particular accused cannot be termed as so independent and disinterested and their evidence so probable consistent and creditworthy that the same would far outweigh the effect of the omission on the part of the prosecution to explain the injuries applying the test set. out in the STATE OF GUJARAT V. BAI FATIMA A. I. R. 1975 S. C. 1478. Failure on the part of the prosecution witnesses to explain injuries as rightly held by the learned Sessions Judge shows that the prosecution had suppressed the genesis and origin of the occurrence and the true version therefore of the manner circumstances place and the time concerning the incident has not been presented by the prosecution. The conduct of the witnesses. who have denied injuries on the accused also justifies an inference as was drawn by the learned Session judge to the effect that the witnesses were lying on the most material part and therefore their evidence was unreliable thirdly there is the defence version which explains the circumstances under which these injuries were received by the seven accused and that version therefore is rendered probable with the result that it would throw doubt on the prosecution case. ( 9 ) ALL these results will inevitably follow in the instant case because the evidence here consists of interested or inimical witnesses as there is no dispute that there was serious enmity between the party of the deceased and the party of the accused and that there were cases and cross-cases and chapter proceedings and cross-chapter proceedings between the rival groups. The defence version is that the main incident took place near a Dada-no-Vas and had started with an attack being mounted by deceased Manaji and his companions on accused No. 6 indicating that the deceased and his party were the aggressors. The other accused that is-accused Nos. I to 5 and 7 arrived on the scene when accused No. 6 was in this manner being attacked and on their intervention to save the said accused they also that is-accused Nos. 1 to 5 and 7 were assaulted by weapons like Dharias swords and sticks. The other accused that is-accused Nos. I to 5 and 7 arrived on the scene when accused No. 6 was in this manner being attacked and on their intervention to save the said accused they also that is-accused Nos. 1 to 5 and 7 were assaulted by weapons like Dharias swords and sticks. If these accused had received injuries near Dada-no-Vas and if the main incident started there then it would be difficult to come to the conclusion that Somaji was surrounded at the railway station by the members of the party of the accused; that on the information being received secretly from his son Manaji who was in his field went to the station persuaded and pacified the members of the accused-party which thereafter left the place and went to the village and then when Manaji and the members of his party including the injured prosecution witnesses except Jaywantrao started for the village and when they came on the road they saw a crowd of 50 to 60 persons armed with deadly weapons coming towards them shouting in a meaning manner and that they took shelter the police outpost that the crowd including the said seven accused arrived broke open the doors and windows after throwing stones and Dhokas on the premises and caused injuries to deceased Manaji and 7 prosecution witnesses in the residential room of head constable Jaywantrao. This version of the prosecution with regard to the genesis and origin of the incident as also the venue of the main incident is rendered improbable and unbelievable by virtue of the fact that the prosecution witnesses who deposed to that effect have failed to explain the injuries on the accused; that they have denied the injuries on the accused and that therefore their evidence is not creditworthy. ( 10 ) APART from this there are certain inherent improbabilities and infirmities in the prosecution case. The starting point of the incident at the railway station which ultimately culminated in the main incident at the police outpost as per the prosecution evidence is very doubtful and the story narrated by the prosecution witnesses in this behalf is inherently impobable and suffers from many infirmities. The starting point of the incident at the railway station which ultimately culminated in the main incident at the police outpost as per the prosecution evidence is very doubtful and the story narrated by the prosecution witnesses in this behalf is inherently impobable and suffers from many infirmities. First of all it passes ones imagination to find that when Somaji and others were actually belaboured kept in detention by the member of the accused-party after exchange of words at the railway station these persons who were at the railway station on their way to the village without anything else being done just waited for the arrival of the deceased whose son had escaped from the place without knowledge or notice of anybody. It would take some time for Himatsing that is the son of the deceased to go from the railway station to the field where Manaji was to apprise him of the situation. It would also take sometime for Manaji to come to the railway station and it is too much to expect that all this time the members of the accusedparty who had overpowered Somaji and others would be waiting and that on the persuation of Manaji these people would silently leave the place as the prosecution witnesses say. Neither the station master nor any other members of the railway staff statements of some of whom were recorded by the police were examined by the prosecution. ( 11 ) IN this connection it would be significant to note that the dying declaration of Manaji Ex. 74 on which the prosecution relied in terms shows that when he was in his field he heard that Somaji wasgheraoed he went there and found that nobody was there. He then came on the road saw a mob and went to the police outpost and then he was attacked. According to this statement therefore when the deceased came to the railway station on getting information that Somaji was gheraoed he found that there was nobody at the station. That means he was alone. He therefore came on the road. That meanshe came alone on the road and then he saw a mob or crowd. That means-he saw it alone; and then he went to the police outpost. That means he alone went to the police Thana; and thereafter he was attacked. That means he was alone. He therefore came on the road. That meanshe came alone on the road and then he saw a mob or crowd. That means-he saw it alone; and then he went to the police outpost. That means he alone went to the police Thana; and thereafter he was attacked. This statement therefore completely destroys the most integral part of the prosecution story about the manner in which the trouble started and the circumstances under which Manaji and the other injured persons had to take shelter into the police outpost. As per the prosecution witnesses when Manaji came all of there where there at the station and on persuation of Manaji themembers of the accused-party left. Thereafter Manaji and all the members of his party including the ones who got injured came out on the road v and they saw a mob and they all together that is Manaji and all his companions took shelter into the police outpost. Thus the very substratum on which the prosecution based its case about the manner in which and the circumstances under which the incident started and the deceased and other injured had to take shelter in the police outpost as narrated by the prosecution witnesses is rendered improbable and unbelievable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 12 ) BUT Mr. Chhaya in this connection submits that there is nothing on record to show that the seven accused persons who in fact are found to have received injuries had received the same before or at the time when the incident at the police outpost happened and it is more likely that following the attack on the deceased and six injured witnesses as also the police headconstable Jaywantrao on duty in the police premises they must have been assaulted and injured by the members of the crowd who had collected there. We do not find any justification for any such assumption. We do not find any justification for any such assumption. In the absence of any data or any concrete material on record in this connection it would be travailing in the realm of imagination in assuming that the injuries on the persons of the accused had been caused to them after the incident inside the police outpost was over. As per the defence version which is probabilised on account of the grounds already set out the main incident must have happened at Dada-no-Vas where-the seven accused persons received injuries. With these injuries it would be difficult if not impossible for these injured to chase and pursue Manaji and his party into the police outpost and after having received suck severe injuries to engage themselves in the attack of such abnormity causing injuries (fatal) to Manaji and serious injuries to some or all of the six injured witnesses. The court is not permitted to reconstruct such a case for the prosecution for which there is no basis whatsoever. Defence has not to explain as to in what circumstances when and where the said injuries were caused to the deceased and other injured persons but it is for the prosecution to prove the injuries caused to them by the accused at the time and place relied upon by the prosecution and by none else and at no other time or place. ( 13 ) WEIGHING the probabilities it emerges that after the main incident happened at Dada-no-Vas where. the accused received Serious injuries. Manaji and members of his party ran into the police outpost and there after on finding that as many as 7 accused had been brutally assaulted and injured some members of the crowd having sympathy for the accused or their friends and admirers attacked Manaji and others. In any event there is no warrant for assuming that the accused received these injuries at the hands of some members of the crowd after it was found that the said accused had assaulted Manaji and six other injured of Manajis party as also headconstable Jaywantrao in the police outpost. If this was the circumstance on which the prosecution wanted to rely it was for the prosecution to bring on record some material which would justify such an inference; and they having failed to do so they cannot rely on a just or bare possibility in support of their case. If this was the circumstance on which the prosecution wanted to rely it was for the prosecution to bring on record some material which would justify such an inference; and they having failed to do so they cannot rely on a just or bare possibility in support of their case. The contents of the information lodged by P. C. Kanji as per Ex. 100 also lends support to the defence version that the main incident happened in the village and probably in the police premises only and only headconstable Jaywantrao was injured. The case is squarely covered by the ratio laid down by the Supreme Court in Lakshmi Singhs case (supra) and it does not come within any of the expectations because this is not a case where the injuries sustained by the accused are minor or superficial nor is this a case where the evidence is so cogent so independent and disinterested so probable consistent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 14 ) BUT the same cannot be said with regard to the injuries caused to head-constable Jaywantrao. Jaywantrao was an independent person not belonging to any party. He was a public servant discharging his duty at the police outpost. He was the headconstable attached to the outpost. Beyond throwing some vague suggestions in cross-examination there is nothing to show that he had any enmity or any reason to involve innocent person so far as the injuries caused to the witness himself are concerned. To this witness as is evident from the medical certificate Ex. 72 two injuries were. caused viz. (1) one transverse incised wound 2 x 1 x muscle deep on right side of neck and (2) tenderness over the abdomen legs back chest etc. Now so far as the second injury is concerned there is history of pelting of stones and other articles and the witness himself admitted that he received those injuries by the same. caused viz. (1) one transverse incised wound 2 x 1 x muscle deep on right side of neck and (2) tenderness over the abdomen legs back chest etc. Now so far as the second injury is concerned there is history of pelting of stones and other articles and the witness himself admitted that he received those injuries by the same. But so far as the injury on the neck is concerned as he says when he went inside the room accused No. 1 Mafaji dealt a dharia blow on his neck on the right side. There is no reason why we should not accept this part of the evidence of this witness. It is true this witness has also failed to refer to the injuries on the accused. But so far as other accused are concerned he does not refer to any injuries being caused by any particular accused on a particular person within his sight. He merely refers to the deceased and the other injured persons lying in the room in the injured condition. He does not give names of the accused persons to the P. S. I. It is only when his statement is recorded which was taken down as a complaint that he names some of the accused including accused No. 1 and therefore failure on his part to explain injuries on the accused would not be of much significance. ( 15 ) IT was submitted by Mr. Shah the learned Advocate for the accused that in any event when he says that accused No. 1 dealt a dharia blow on him he must have atleast noticed injuries on accused No. 1. But here also it has to be noted that as he says as soon as he went inside that is-inside the room Mafaji dealt a blow on him and he ultimately fell down. He goes from outside that is a lighted site into the room which was comparatively less lighted and though he may notice the broad features of man to recognise him he may not in that state when he himself is injured have an opportunity to mark the injuries on the person of accused No. 1. Again so far as his say with regard to his own injuries is concerned we cannot say that he is a person who is on inimical terms with Mafaji or is interested in involving Mafaji. Again so far as his say with regard to his own injuries is concerned we cannot say that he is a person who is on inimical terms with Mafaji or is interested in involving Mafaji. He is an independent witness a member of the police force and there is no reason why with regard to his own injuries he should allow the real culprit to go scot fret and involve an innocent man. We therefore do not find any reason to discard his evidence with regard to the injuries caused on him which is corroborated by the medical evidence and with regard to the assailant who caused the said injuries to him. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 16 ) IT seems the learned Judge was carried away by virtue of the fact that the prosecution witnesses had not explained injuries on the person of the accused and he also placed this witness Jaywantrao in the same category as the other witnesses. The other witnesses as earlier stated are interested and partisan witnesses or witnesses on inimical terms. They therefore stand on different footing and that is the reason why we have not inspite of a point vehemently urged by Mr. Chhaya placed reliance on the evidence of the other injured witness with regard to the injuries caused to them personally by the respective accused and benefit of doubt is given to them for causing injuries to the injured witnesses. ( 17 ) BUT that would not be the case so far as Jaywantrao is concerned. No cogent or convincing reasons are assigned by the learned Judge for holding accused No. 1 not guilty with regard to his act of causing injuries by means of a dharia on the neck of witness Jaywantrao. We do not agree with the learned Judge that this injury would be accidental. There is no justification for such a conclusion. No cogent or convincing reasons are assigned by the learned Judge for holding accused No. 1 not guilty with regard to his act of causing injuries by means of a dharia on the neck of witness Jaywantrao. We do not agree with the learned Judge that this injury would be accidental. There is no justification for such a conclusion. We also do not agree with the learned Judge that his case would also fall within the dictum of Laxmi Singhs case (Supra) by virtue of the fact that he has failed to explain injuries on the person of the accused. Both the conclusions drawn as well as the reasons assigned by the learned Judge therefore for not holding accused No. 1 guilty with regard to his act of voluntarily causing hurt to Jaywantrao who was a public servant in the discharge of his duty at that time and which injury was obviously caused with intent to prevent or deter him from discharging his duty as such public servant are not acceptable to us and are not reasonable and proper. We have demonstrated the unworthiness of the same above and so far as accused No. 1 is concerned though his acquittal will be confirmed with regard to the injuries caused on Manaji and others so far as the injuries caused on witness Jaywantrao are concerned he will be convicted for the offence punishable under sec. 332 of the Indian Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 18 ) APPEAL dismissed except with regard to accused No. 1 against whom it is partly allowed Order of acquittal against the accused except accused No. 1 partly is confirmed. The order of acquittal against No. 1 with regard to the offence of voluntarily causing hurt to Jaywantrao is set aside and he is convicted for the offence under sec. 332 of the Indian Penal Code for the said act and he is sentenced to R. 1. for one year. Bail bonds of all the accused to be canceled and accused No. 1 to surrender on or before 15th February 1980. 332 of the Indian Penal Code for the said act and he is sentenced to R. 1. for one year. Bail bonds of all the accused to be canceled and accused No. 1 to surrender on or before 15th February 1980. Appeal against accused No 1 partly allowed; but dismissed against others. .