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2009 DIGILAW 132 (GUJ)

State of Gujarat v. Kanubhai Zinabhai Patel

2009-03-02

A.L.DAVE, J.C.UPADHYAYA

body2009
Judgment J.C. Upadhyaya, J.—The State of Gujarat preferred this acquittal appeal, challenging the acquittal of fourteen respondents herein, who were original accused Nos. 1 and 4, 8 and 13 to 20 in Sessions Case No. 134 of 1999. In Sessions Case No. 134 of 1999, in all, there were twenty accused persons, out of which, the original accused No. 11 Balubhai Chotubhai Dhodia Patel expired, when the trial of the Sessions Case was pending. Therefore, the sessions case proceeded against nineteen accused persons. The learned Additional Sessions Judge, Vyara by judgment and order dated 28.8.2001 recorded conviction of the co-accused Nos. 2, 3, 9, 10 and 12 for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code (‘IPC’, for short) and each of them was sentenced to undergo imprisonment for life and fine of Rs. 1000/-, and in default of payment of fine S.I for one month. By virtue of the said judgment, the present fourteen respondents, who were co-accused persons in the said case came to be acquitted. 1.1 The five co-accused persons, who came to be convicted by the learned trial Judge in the aforesaid Sessions Case No. 134 of 1999, preferred Criminal Appeal No. 838 of 2001, challenging their conviction. Criminal Appeal No. 838 of 2001, when came up for hearing, none of the parties drew attention of this Court about the pendency of delay condonation application in the acquittal appeal. 2. By judgment and order dated 26.2.2009, Criminal Appeal No. 838 of 2001 came to be allowed and the order of conviction recorded by the learned Additional Sessions Judge, Vyara, came to be set-aside and the convicted –appellants accused persons came to be acquitted. While disposing of the Criminal Appeal No. 838 of 2001, the oral and documentary evidence adduced by the prosecution in the aforesaid Sessions Case came to be discussed and scrutinized. When such is the situation, we deem it expedient to take up the acquittal appeal bearing Criminal Appeal No. 422 of 2002, for hearing of admission. 3. Learned APP Mr. Mengdey for the appellant - State submitted that the learned trial Judge erred in not properly appreciating the evidence on record. There is no dispute that the deceased died a homicidal death. 3. Learned APP Mr. Mengdey for the appellant - State submitted that the learned trial Judge erred in not properly appreciating the evidence on record. There is no dispute that the deceased died a homicidal death. The prosecution has examined four eye-witnesses, namely, P.W. 7 Dahyabhai Jivanbhai, P.W. 8 Tulsiben Dahyabhai, P.W. 9 Ramilaben Shankarbhai and P.W. 10 Bharatbhai Dahyabhai and considering their evidence, the involvement of the present respondents is proved beyond reasonable doubt. It is further submitted that the case of the present fourteen respondents is distinct than the case and evidence against the convicted co-accused Nos. 2, 3, 9, 10 and 12. Therefore, though, the Criminal Appeal No. 838 of 2001 came to be preferred by the five convicted co-accused persons and though came to be allowed, and their conviction came to be set-aside, will not make any adverse effect upon the present acquittal appeal and the acquittal appeal, therefore, may be admitted. 4. The record and proceedings of Sessions Case No. 134 of 1999 are still available in this Court and we have examined the record and proceedings of the Sessions Case No. 134 of 1999 in context with the submission made by learned APP Mr. Mengdey for the appellant - State. 5. Re-examining the record and proceedings of the case, and considering the evidence adduced by the four witnesses, who claim to be eye-witness of the incident, we find that their evidence is common vis-a-vis all the twenty persons. The incident is common, allegations are common and, therefore, the facts are so mixed-up that they cannot be separated from each other. 5.1 P.W. 7 Dahyabhan Jivanbhai examined at Exhibit 87 happens to be the first informant. About the incident, he stated that original accused No. 17 Khandubhai Maganbhai came near the house of deceased Ratanbhai Jivanbhai and started giving abuses and asked the deceased to come out of the house. This witness Dahyabhai, therefore, told the accused No. 17 that there is no dispute between the two and why he is giving abuses, and thereupon, the accused No. 17 Khandubhai blew a whistle, as a result of which, about twenty persons rushed to the spot. Seeing them, the witness along with Ratanbhai rushed into the house and closed the door. The crowd of twenty persons, therefore, broke open the door and rushed into the house and dragged Ratanbhai out of the house. Seeing them, the witness along with Ratanbhai rushed into the house and closed the door. The crowd of twenty persons, therefore, broke open the door and rushed into the house and dragged Ratanbhai out of the house. The witness says that Ratanbhai requested the crowd to leave him as his family would be ruined. Thereafter, this witness Dahyabhai went out of the house, but seeing him, accused Paklo, Narottam, Girish, Soma and Dhansukh ran after him. He, therefore, ran into the house and took shelter in cupboard. The witness then deposed that he saw the incident, while sitting in the cupboard from the slot. 5.2 In this connection, if the evidence of Dy.S.P. Mr. Patel P.W. 12, who is examined at Exhibit 117 is considered, together with the evidence of the first informant P.W. 7 Dahyabhai and the FIR, Exhibit 92, it clearly transpires that the first informant witness Dahyabhai did not state in his FIR that he saw Ratanbhai requesting him for leaving him or else his family would be ruined. In the FIR, he nowhere stated that he climbed down the otta and on seeing him, Paklo, Girish, Narottam, Soma, Dhansukh turned on him and, therefore, he rushed into the house and took shelter in the cupboard, and he saw the incident through the slot in the cupboard. 6. So far as eye-witnesses Tulsiben Dahyabhai (P.W. 8), Ramilaben Shankarbhai (P.W. 9) and Bharatbhai Dahyabhai (P.W. 10) are concerned, they also deposed to the same effect. In this respect, again considering the evidence of Dy. S.P. Mr. Patel, examined at Exhibit 117 and more particularly paragraphs 13, 14 and 15 of his cross-examination, it clearly transpires that all these witnesses have improved their version during the course of their evidence, which they did not refer in their statements. Witness Tulsiben did not state before the police that on seeing these twenty persons, she got frightened and rushed into the house and locked the door from inside and the accused persons broke open the door. She has also not stated that the accused persons dragged Ratanbhai out of the house in front of the house and Ratanbhai requested the crowd to leave him. She nowhere stated in her statement that her husband, first informant Dahyabhai took shelter in a cupboard. On the contrary, it emerges from the evidence of Dy. S.P. Mr. She has also not stated that the accused persons dragged Ratanbhai out of the house in front of the house and Ratanbhai requested the crowd to leave him. She nowhere stated in her statement that her husband, first informant Dahyabhai took shelter in a cupboard. On the contrary, it emerges from the evidence of Dy. S.P. Mr. Patel that the witness Tulsiben had given an altogether different version in her statement to the effect that she learnt from her husband and brother-in-law that all the twenty accused persons had come with sticks and had done the act. 7. As stated above, the evidence of witness Ramilaben Shankarbhai (P.W. 9) is identical to the evidence adduced by Tulsiben in the trial Court. Considering the evidence of Dy. S.P. Mr. Patel, it clearly transpires that even Ramilaben did not state before the police that the accused persons dragged Ratanbhai out of the house and when the first informant Dahyabhai went out of the house, the accused ran after the first informant and, therefore, he took shelter in a cupboard. On the contrary, this witness Ramilaben in her police statement stated that she learnt from her husband Shankarbhai and the first informant Dahyabhai that the accused had come with sticks in their hands and had done the act. 8. Considering the evidence regarding the police statements of both these witnesses Tulsiben and Ramilaben, as emerges in the deposition of Dy. S.P. Mr. Patel, it transpires that they took shelter in the field of one Shakuben, where there was standing crop of sugarcane. It transpires that the trial Court, relying on the police statement of Shakuben, though is not examined as a witness, came to the conclusion that the two witnesses Tulsiben and Ramilaben were not seen by Shakuben in her sugarcane field. This is impermissible in law. The net result would be that both these witnesses Tulsiben and Ramilaben cannot be treated as eye-witness to this incident. 9. So far as witness Bharatbhai Dahyabhai (P.W. 10), 4th eye-witness, who is son of the first informant is concerned, though projected himself as an eye-witness to the incident, but, considering the evidence of Dy. S.P. Mr. The net result would be that both these witnesses Tulsiben and Ramilaben cannot be treated as eye-witness to this incident. 9. So far as witness Bharatbhai Dahyabhai (P.W. 10), 4th eye-witness, who is son of the first informant is concerned, though projected himself as an eye-witness to the incident, but, considering the evidence of Dy. S.P. Mr. Patel, it is clear that he had stated before police that on hearing the shouts, he was frightened and he, therefore, rushed towards the house of Shakuben and then went away on motorcycle with Kamleshbhai towards Anaval and, therefore, also he could not have seen the incident. 10. What emerges from foregoing discussion is that the four witnesses, who are projected as eye-witnesses, could not have been eye-witnesses. They have improved upon their original version, so as to support the prosecution case against the accused persons and, therefore, cannot be believed. In their evidence, all the four witnesses have deposed qua all twenty assailants. Their evidence as to overt act allegedly committed by them, is common, and no specific role is attributed to any of the assailants, though they claim themselves to be eye-witnesses, but, in fact, they are not eye-witnesses. During the course of their evidence in the Court, they have materially improved upon their original version. If the evidence adduced by all these four witnesses is not taken into consideration, then, nothing remains by way of evidence against the present respondents - co-accused persons. 11. In view of the above discussions, we do not find any just and convincing ground to admit the appeal, and the same stands dismissed.