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2011 DIGILAW 486 (GUJ)

Shamalbhai Chimanbhai Vasava v. State of Gujarat

2011-06-27

A.L.DAVE, BANKIM N.MEHTA

body2011
Judgment A.L. Dave, J.—These three appeals arise out of the judgment and order rendered by the learned Additional Sessions Judge, Fast Track Court No. 1, Vadodara on 5.7.2005 in Sessions Case No. 241 of 2002. The appellants were the accused persons before the Sessions Court who came to be convicted for offences punishable under Sections 302, 201, 452, 323 and 506(2) of the IPC and were sentenced as under: 1. Under Section 302 of IPC Life imprisonment and fine of Rs. 25000/- in default RI for two years. 2. Under Section 201 of IPC RI for two years and fine of Rs. 2000/- in default RI for six months. 3. Under Section 452 of IPC RI for two months and fine of Rs. 200/- in default RI for ten days. 4. Under Section 323 of IPC RI for one month and fine of Rs. 100/- in default RI for ten days. 5. Under Section 506(2) of IPC RI for one month and fine of Rs. 100/- in default RI for ten days. However, they came to be acquitted of the charges for offences punishable under Sections 504 and 114 of the IPC and Section 135 of the Bombay Police Act. The sentences were ordered to run concurrently. 2. When Criminal Appeal No. 1729 of 2005 came up for hearing before us on 22.6.2011, we found that two of the convicts have not preferred appeals and are undergoing sentence at Baroda Central Prison and therefore, the non appealing convicts were ordered to be brought before this Hon’ble Court along with the appellant on 23.6.2011 and on that day, when they were brought before us, it was found that the non- appealing convicts, though desirous of preferring appeal, could not prefer appeal, as they had lost the papers. Least those two non- appealing convicts may not suffer on account of not preferring an appeal, we requested Mr. Barod to take up their cause and Mr. Barod preferred Criminal Appeal No. 730 of 2011 on behalf of those two appellants – convicts. 3. The prosecution case in brief can be stated thus: 3.1 The incident in question occurred on 2.9.2002. Surajben filed occurrence report on 3.9.2002 about missing of his son Manu Jesang. Barod to take up their cause and Mr. Barod preferred Criminal Appeal No. 730 of 2011 on behalf of those two appellants – convicts. 3. The prosecution case in brief can be stated thus: 3.1 The incident in question occurred on 2.9.2002. Surajben filed occurrence report on 3.9.2002 about missing of his son Manu Jesang. On 4.9.2002, dead body of Manu Jesang was noticed and an FIR was then lodged by Manu Chhita claiming to be an eye witness to the incident, which was allegedly occurred on 2.9.2002 when the appellants allegedly caused death of deceased Manu Jesang by attacking him with various weapons like dhariya and sticks. The police lodged an FIR, investigated the case and recorded statements of Dariyaben, Rasikbhai, Kaushikbhai etc. These three witnesses also claimed to be eye-witnesses to the incident. The police investigated the case and filed charge sheet in the Court of JMFC, Shinor, who in turn, committed the case to the Court of Session and Sessions Case No. 241 of 2002 was registered. The appellants came to be convicted as stated above and hence, these appeals. 4. Learned Advocate for the appellant submitted that the prosecution case, though seems to be trustworthy, prima facie, a closer look of the evidence would make it clear that the case cannot be accepted to convict a person and sentence him to imprisonment for life. It was submitted that though the first informant and three other witnesses claimed to be eye-witnesses to the incident, their conduct is unnatural in the sense that having seen occurrence, they do not disclose to anyone about the occurrence for two days till the FIR is filed on the 3rd day. The FIR is also filed when the dead body of the deceased was noticed lying in the field. The evidence regarding the place where the dead body was lying is also inconsistent. It was submitted that as per the eye witnesses, the deceased was attacked with dhariya and lathis, however, there is not a single injury, which can be attributed to stick which would make involvement of those appellants doubtful, who were armed with stick. 4.1 So far as other evidence is concerned, mother of the victim states that after the incident, there was heavy rain. 4.1 So far as other evidence is concerned, mother of the victim states that after the incident, there was heavy rain. The dead body was lying in open and if there was rain, it could not have remained stained with blood and no blood would have been found on the clothes of the victim. It was also contended that the so called eye-witnesses have not taken any action worth a name. It was contended that the first informant himself was detained by police and interrogated for 3-4 days, when he subsequently discloses the manner in which he claims the incident to have occurred. A question was raised that if the dead body was under rain, the blood on the clothes of the victim would have been washed out and, if that is so, the FSL report that blood of the group of the deceased was found on the cloth of the deceased would be falsified. 4.2 It was contended further that there was no rigor mortis found, there was no degeneration of body and therefore, the incident does not seem to have occurred at the time and the place of incident. If that is so, there would have been no blood on the clothes. This projects two possibilities; one that the eye witness was not telling the truth and second that the investigating agency was not investigating honestly. In either case, it was urged that benefit may be given to the convict appellants. 4.3 It is also contended that complainant Manu Chhita was not available in the village soon after the incident. The witnesses have not disclosed about having seen the occurrence before anyone, which is not a natural conduct for a witness. Learned advocate therefore, submitted that the whole prosecution story is concoction and benefit of doubt may be given to the convict appellants. 5. Learned APP Mr. Pandya has opposed these appeals. According to him, the evidence of the doctor shows that the dead body was not wet. Rigor mortis was not present nor was PM lividity present. According to Mr. Pandya, only on statement of Surajben, blind reliance cannot be placed to doubt the evidence of eye-witnesses and therefore, the trial Court was justified in convicting the appellants and the appeals may be dismissed. 6. We have given a thoughtful consideration to rival submissions and have examined record and proceedings in that context. According to Mr. Pandya, only on statement of Surajben, blind reliance cannot be placed to doubt the evidence of eye-witnesses and therefore, the trial Court was justified in convicting the appellants and the appeals may be dismissed. 6. We have given a thoughtful consideration to rival submissions and have examined record and proceedings in that context. 6.1 First informant Manu Chhita Exh-16 and witnesses Dariyaben Exh-18, Rasikbhai Exh-40 and Kaushikbhai Exh-48 all claimed to be eye-witnesses to the incident and they claimed that the appellants had attacked the victim Manu Jesang with dhariya and sticks. In this context, if the medical evidence is seen, it clearly indicates total absence of mark of injuries that can be attributed to a weapon like stick. This rules out attack by those accused persons who are alleged to have been armed with sticks namely Poonambhai Chimanbhai Vasava and Jesang Vajesang. 6.2 Apart from the above aspects, the FIR was lodged after three days of the occurrence and the dead body was found to be neither swollen nor developed any rigor mortis or PM lividity. Absence of rigor mortis is understandable, but absence of PM lividity and absence of any degeneration and/or swelling is enough to drive this Court to a conclusion that the death may not have occurred on 2.9.2002 as is alleged to have been seen by the eye witnesses. 6.3 Apart from above aspects, it may be noted that the eye-witnesses have not taken any action in spite of having seen the attack on victim Manu Jesang. Not only that, they did not react to the attack immediately, but they slept over it for two more days and lodged the FIR only when the dead body was found and a stereotype explanation for such inaction is tendered by saying that they were threatened by the appellants and were scared, which deterred them from lodging the FIR. They, however, do not come out with any explanation as to how they could muster courage to lodge FIR on the 3rd day. It also transpires from their evidence that they had not confined themselves to their homes. They moved out and came in touch with common public, but none of them disclosed anything to anyone. 6.4 It appears that Manu Chhita was not available in the town after lodging of the FIR. It also transpires from their evidence that they had not confined themselves to their homes. They moved out and came in touch with common public, but none of them disclosed anything to anyone. 6.4 It appears that Manu Chhita was not available in the town after lodging of the FIR. He was taken by the police and then he disclosed the story of attack on the victim Manu Jesang. 6.5 The version of mother of the victim Surajben that it had rained heavily after the incident has remained unchallenged. In the absence of any material to show that the rain continued for a long time, it can be presumed that it must have rained for a while and stopped. But even that would, with certainty, go to show that the clothes of the victim could not have contained blood, as certified by the FSL. The possibility of rain having stopped, clothes having dried also cannot be ruled out. But that would certainly falsify the version of eye witnesses. If find of blood is accepted as gospel truth, it would falsify the version of Surajben. When the eye-witnesses’ version that the deceased was attacked with stick is falsified by medical evidence; and when the dead body was not swollen nor degenerated, the possibility of death having occurred two days prior to lodgment of the FIR or performance of postmortem is ruled out and the prosecution story cannot be accepted as truthful and trustworthy. The version of eye-witnesses therefore, could not have been accepted by the trial Court. 7. Resultantly, the appeals deserve to be allowed and the same are allowed. The judgment and order of conviction and sentence dated 5.7.2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Vadodara in Sessions Case No. 241 of 2002 is set aside. The appellants accused are ordered to be released forthwith, if not required in any other case. P P P P P