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2011 DIGILAW 382 (GUJ)

Ramsubhai Lalsingbhai Damor v. State of Gujarat

2011-05-03

A.L.DAVE, BANKIM N.MEHTA

body2011
Judgment A.L. Dave, J.—The appellant was convicted by Sessions Court, Dahod, by judgment and order dated 30.9.2005 rendered in Sessions Case No. 47/2004(old) 299/2004(new), for the offence of murder of Valsingbhai Vichhiyabhai Damor allegedly committed by him on 29.12.2009 around 19.00 hours at village Vagela, Taluka : Jhalod, near Mathuriya Talav, by inflicting two axe blows on the head of the deceased. The incident was allegedly witnessed by Nanubhai, son of the deceased, who was aged 8 1/2 years at the time of the incident. Upon hearing his shrieks, his sister Suniben came to the spot. Then she informed others. However, they remained with the dead body till next morning and then Suniben went to Jhalod Police Station and lodged the FIR, on the basis of which, offence was registered. The offence was investigated by the police and charge sheet was filed in the Court of learned J.M.F.C. Jhalod, who, in turn, committed the case to the Court of Sessions and Sessions Case No. 47/2004 came to be registered. 2. Charge was framed against the accused at Exh.2 for the offences punishable under Sections 302 & 504 of the Indian Penal Code [“IPC” for short] and Section 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and came to be tried. 3. Upon considering the evidence led before it, the trial Court convicted the appellant-accused for the offence of murder punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo R.I for one month. The trial Court also convicted the appellant for the offence punishable under Section 504 IPC and sentenced him to undergo S.I for six months and to pay a fine of Rs. 500/-, in default, to undergo S.I for two months. The trial Court further convicted the appellant for the offence punishable under Section 135 of the Bombay Police Act and sentenced him to undergo R.I for one year with a fine of Rs. 250/-, in default, to undergo R.I for one month. All the sentences were ordered to run concurrently. 4. Heard learned advocate Mr. Hriday Buch for the appellant and learned A.P.P. Mr. K.L. Pandya for the State, at length and in great detail. 5. Learned advocate Mr. 250/-, in default, to undergo R.I for one month. All the sentences were ordered to run concurrently. 4. Heard learned advocate Mr. Hriday Buch for the appellant and learned A.P.P. Mr. K.L. Pandya for the State, at length and in great detail. 5. Learned advocate Mr. Buch, appearing for the appellant, submitted that the case rests solely on the evidence of a child witness. He submitted that the child witness was aged only 8 1/2 years at the time of the incident and if his deposition is considered, he would be found to be very innocent even when his evidence was recorded. The trial Court put questions to him to ascertain, whether he could maintain the sanctity of oath and then administered oath to him. But, there Mr. Buch has also his reservation, though he does not press this point so seriously. Mr. Buch submitted that it is risky to found a conviction on solitary evidence of a child witness without looking for corroboration. In the instant case, evidence of child witness Nanubhai does not get any corroboration from any corner and, therefore, the trial Court erred in convicting the appellant-accused. 5.1 Mr. Buch submitted that there in an inordinate delay in lodging the FIR and no explanation is given for the delay by the first informant in her deposition. There is discrepancy about what happened between the incident and lodgment of the FIR. However, when did the first informant go to lodge the FIR, is a question which is answered differently by different witnesses. Mr. Buch, therefore, submitted that such pieces of evidence would only weaken the prosecution case. Mr. Buch submitted further that the axe, which was allegedly used by the accused and thrown away on the spot, is found not to carry any blood marks on it, although there were two head injuries allegedly caused with it by the accused. It was submitted that this muddamal axe is identified by the witness, as the axe, which was used in commission of crime and which was seized from the spot. This would again put a question mark on the veracity of the evidence of this witness. Mr. Buch submitted that the entire prosecution case, which is founded on the sole testimony of a child witness, is weakened by other evidence and other circumstances and, therefore, conviction could not have been recorded by the trial Court. This would again put a question mark on the veracity of the evidence of this witness. Mr. Buch submitted that the entire prosecution case, which is founded on the sole testimony of a child witness, is weakened by other evidence and other circumstances and, therefore, conviction could not have been recorded by the trial Court. Mr.Buch lastly submitted that, therefore, the appeal may be allowed and the conviction of the appellant may be set aside. 6. Learned A.P.P. Mr. Pandya has opposed this appeal. According to him, the child witness is an eye witness, whose vision is not coloured by any interest. He is an innocent witness and his evidence has to be accepted in that light, as sharp memory or accuracy cannot be expected from a rustic village child. Mr. Pandya contended that the other discrepancies in the prosecution case do not pertain to the incident and, therefore, may not be given much significance. He pleaded that the trial Court has considered all the relevant aspects and has recorded the conviction of the appellant appropriately and, therefore, the appeal may be dismissed. 7. We have examined the record and proceedings in the context of rival submissions. 8. At the outset, we may observe that the conviction recorded by the trial Court for the offences punishable under Section 504 IPC and Section 135 of the Bombay Police Act cannot be sustained under any circumstances because there is total lack of evidence, so far as offence punishable under Section 504 IPC is concerned. The axe, which is allegedly used by the appellant-accused is an agricultural implement and is not specifically included in the notification Exh.35. It is a matter of doubt, whether the muddamal article axe was the very weapon which was used in commission of the crime, as no blood was found on that weapon when it was seized, although, as per the prosecution case, it was left at the place after the occurrence and was seized from the place of occurrence. The eye witness does not speak of any exchange of words or use of abusive language, which would offend the deceased or any one. Therefore, the conviction of the appellant-accused for the offences punishable under Section 504 IPC and Section 135 of the Bombay Police Act deserves to be set aside. 9. The eye witness does not speak of any exchange of words or use of abusive language, which would offend the deceased or any one. Therefore, the conviction of the appellant-accused for the offences punishable under Section 504 IPC and Section 135 of the Bombay Police Act deserves to be set aside. 9. So far as the principal offence of murder is concerned, eye witness Nanubhai is examined as PW.7 at Exh.26. At the time when his deposition was recorded on 27.7.2005, his age was 10 years. We do not propose to deal with the question, whether there was proper verification on the part of the Court before administering oath on the question, whether the witness was matured enough to uphold the sanctity of oath, as the same was not seriously pressed by the learned advocate Mr. Buch, though raised during the course of arguments. The child witness has deposed that when he and his father were returning after attending some obsequial ceremony and when they were passing by the pond at about 3 pm, the accused came and assaulted his father with an axe. One blow was given on his head on right hand side and the second blow was given on the eye. He says that he had raised shouts, but nobody came to rescue. However, his sister Suniben and aunt Kantaben came. Thereafter, the family members Havsingbhai, Mansingbhai and Galubhai came. A shawl was put on the body of the deceased. They waited in darkness by the side of the dead body. His sister had gone to lodge FIR. The Sarpanch had also come. He identified the accused as well as the axe before the Court. The witness was put to the test of cross-examination. He stated that he had not gone to school and he did not know what is religion and what is God. He denied the suggestion that somebody from bush came and attacked his father. He asserted that blows were given by the accused. He denied the suggestion that about 10 to 15 blows were given, but, asserted that 3 blows were given and the entire axe was stained with blood. According to him, the quarrel lasted for about 20 minutes. He also admitted that he was deposing as told to him by his brother. He stated that he was not taught what was to be spoken in the Court by his aunt Kantaben. According to him, the quarrel lasted for about 20 minutes. He also admitted that he was deposing as told to him by his brother. He stated that he was not taught what was to be spoken in the Court by his aunt Kantaben. He denied the suggestion that he was telling untruth before the Court. 10. This piece of evidence is the solitary evidence, which would connect the accused with the crime. The witness has admitted that he was taught by his brother what was to be spoken by him and what was to be identified by him before the Court. This would require court of law to look for corroboration, as it would be more prudent to do so. Taking that approach, if we examine the evidence led by the prosecution, the first glaring feature that we find is that this boy deposed that the axe with which the injuries were caused was seen with lot of blood. Against this, the axe, that is claimed to be seized from the place of occurrence and identified by the witness as one used by the accused in commission of the crime, does not carry any mark of blood. Meaning thereby, that part of the evidence of child witness Nanubhai that the axe, which was shown to him, was used in commission of crime and that it was seen with bloodstains, is not at all corroborated, but is falsified. Further, the same aspect can be looked at from a different angle. If the axe which was projected as the weapon used in the commission of crime, was not possibly the weapon used in commission of the crime, then the investigation could not be said to have been done diligently, if not honestly. This would go to the root of the matter. The moment we find that the investigation is not carried out diligently, it would be too risky not to look for corroboration from the evidence of the solitary eye witness, who is a child witness and who does not know what God is and what religion is. Even when the questions were put to him by the Court to ascertain his understanding, he admits that he does not know who are the persons sitting in the Court wearing black coats. 11. Even when the questions were put to him by the Court to ascertain his understanding, he admits that he does not know who are the persons sitting in the Court wearing black coats. 11. With the above background, if the evidence is seen, the other peripheral aspects, which are not directly on the point of occurrence, would assume greater importance. One of them is that there are different versions coming from different witnesses as to what happened after the incident and at the time of lodging of the FIR. If the evidence of child witness Nanubhai, his sister Suniben (PW.2, Exh.10), Ransingbhai (PW.6 Exh.25) is seen, it makes it clear that it is not clear that when and how did Suniben come to the spot. It is not clear as to how and when she went to the police station because she says that she went along with her uncle, whereas witness Ransingbhai says that when he called her for going to the police station, she denied and, therefore, he alone went to the police station and thereupon a constable came and along with the constable she went to the police station and lodged the FIR. This is more important, more particularly when there is a considerable delay in lodging the FIR. The FIR is lodged on the next day at about 2.30 pm, which would be after about 24 hours, if the time of the incident is considered as 3 pm, as deposed by the child witness or it would be about 20 hours, if the other prosecution version is taken indicating time of the incident to be 19.00 hours. It comes in the evidence that Suniben reached Jhalod Police Station at 9.00 am in the morning and it remains unexplained why the FIR was not registered till 2.30 pm. This part would assume greater importance for the reason that the version of the child eye witness runs contrary to other likely corroborative pieces of evidence. 12. The sum total of the above discussion is that the sole eye witness, who is a child, is admittedly tutored witness. He is tutored about what to speak and what to identify before the Court. He gives the time of the incident to be 3 pm, whereas the entire prosecution case is that the incident occurred at 19.00 hours i.e. 7 pm. 13. He is tutored about what to speak and what to identify before the Court. He gives the time of the incident to be 3 pm, whereas the entire prosecution case is that the incident occurred at 19.00 hours i.e. 7 pm. 13. The weapon identified to be the one, which was used in the commission of crime and seized from the spot itself, ruling out the possibility of any tampering, does not carry bloodstains though two head injuries are alleged to be caused by the same weapon. 14. There are discrepancies in the evidence about what happened after the incident and at the time of recording of the FIR. 15. Resultantly, the prosecution cannot be said to have proved the case against the appellant beyond reasonable doubt and the benefit, therefore, must flow to the appellant-accused. 16. The appeal, therefore, stands allowed. The conviction and sentence recorded by the learned Additional Sessions Judge & Presiding Officer, FTC-3, Dahod, in Sessions Case No. 47/2004(old) 299/2004 (new) by judgment and order dated 30.09.2005 is hereby set aside. The appellant-Ramsubhai Lalsingbhai Damor is acquitted of the charges levelled against him. He be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to him.