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Gujarat High Court · body

2016 DIGILAW 1655 (GUJ)

Harjibhai Vithhalbhai Varli v. State of Gujarat

2016-08-05

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. Present appeal assails the judgment and order dated 30/01/2001, passed by the learned Additional Sessions Judge, Valsad @ Navsari, in Sessions Case No. 107 of 1994, whereby, the appellants herein - original accused Nos. 2 to 11 came to be convicted for the offences punishable under Sections 332, 325 and 323 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and sentenced as under: Ori. Accused No. Offence Sentence 2, 7, 8 & 9 332 RI for one year and fine of Rs. 500/- each and in default, to undergo further RI for one month. 2, 7, 8 & 9 325 RI for two years and fine of Rs. 1,000/- each and in default, to undergo further RI for two months. 2, 7, 8 & 9 323 RI for two months and fine of Rs. 100/- each and in default, to undergo further RI for five days. 3, 4, 5, 6, 10 & 11 332 RI for three months and fine of Rs. 200/- each and in default, to undergo further RI for ten days 3, 4, 5, 6, 10 & 11 325 RI for nine months and fine of Rs. 500/- each and in default, to undergo further RI for one month. 3, 4, 5, 6, 10 & 11 323 RI for fifteen days and fine of Rs. 50/- each and in default, to undergo further RI for three days. 2. It is pertinent to note that since original accused No. 1 - Divarbhai Ravjibhai Varli had expired, the case against him was abated by the trial Court. It is also reported that, during the pendency of the present appeal, appellant No. 9 herein - original accused No. 10 - Sureshbhai Vasantbhai Rayat has expired on 05/03/2009. A copy of his Death Certificate is made available for perusal. Accordingly, the present appeal is abated qua appellant No. 9 herein - original accused No. 10. 3. Filtering the unnecessary details the facts of the prosecution case are that on 09/07/1993, complainant - Ramjibhai Ramlagan Thakur when was going to cultivate his land situated at village: Talwada by a tractor, the appellants herein - original accused (hereinafter referred to as 'the accused for convenience') allegedly restrained him and caused some damage to his tractor. 3. Filtering the unnecessary details the facts of the prosecution case are that on 09/07/1993, complainant - Ramjibhai Ramlagan Thakur when was going to cultivate his land situated at village: Talwada by a tractor, the appellants herein - original accused (hereinafter referred to as 'the accused for convenience') allegedly restrained him and caused some damage to his tractor. Hence, the complainant and other police personnel on guard (bondobast), had tried to persuade them to which, the people in the mob enticed and attacked the complainant as well as the police personnel with sticks and stones and thereby, attempted to do them to death. Due to the assault, to disperse the attacking mob, the complainant fired five rounds in air from his licensed gun, whereas, the police personnel fired two rounds in the air from their service rifles and hence, the mob enticed further; they snatched away two rifles possessed by the police personnel and also injured Unarmed Police Constables namely Sudam Ganpat, Hansraj Nageshwar and Sahebrao Shankar and prevented them from discharging them duty. Thus, the accused committed the offence alleged against them for which, a complaint came to be lodged for the offences punishable under Sections 307, 332, 325, 342, 323, 395 and 427 of the IPC. 3.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court. The trial Court framed charge against the accused, which was read over to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/N. Name of Witness Exh. 1 PW-1 Ramjibhai Ramlagan Thakur, complainant 25 2 PW-2 Mahendraray Devendraray 27 3 PW-3 Dr. Bipinchandra Lallubhai Sakhiwala, MO 31 4 PW-4 Sudambhai Ganpatbhai, injured PHC 47 5 PW-5 Hansraj Nageshwar Upadhyay, injured PC 48 6 PW-6 Sahebrao Shankarbhai, injured PC 51 7 PW-7 Maheshkumar Babulal Naik, Sr. PSI & IO 52 DOCUMENTARY EVIDENCE S/N. Document Exh. 1 PW-1 Ramjibhai Ramlagan Thakur, complainant 25 2 PW-2 Mahendraray Devendraray 27 3 PW-3 Dr. Bipinchandra Lallubhai Sakhiwala, MO 31 4 PW-4 Sudambhai Ganpatbhai, injured PHC 47 5 PW-5 Hansraj Nageshwar Upadhyay, injured PC 48 6 PW-6 Sahebrao Shankarbhai, injured PC 51 7 PW-7 Maheshkumar Babulal Naik, Sr. PSI & IO 52 DOCUMENTARY EVIDENCE S/N. Document Exh. 1 Complaint 26 2 Panchnama of place of offence 28 3 Panchnama as to seizure of rifles 29 4 Medical Certificate of Sudambhai Ganpatbhai 46 5 Medical Certificate of Sahebrao Shakarbhai 33 6 Medical Certificate of Hansraj Nageshwar 32 3.2 At the end of the trial, after recording the Further Statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid, by the impugned judgment and order, giving rise to prefer the present appeal. 4. Heard learned advocate Mr. R.L. Kodekar for Mr. R.S. Sanjanwala, the learned advocate for the accused and Mr. K.L. Pandya, the learned Additional Public Prosecutor for the respondent - State. 4.1 Mr. Kodekar, the learned advocate for the appellants - accused submitted that the trial Court has committed a grave error in convicting the accused; the impugned judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the present appellants - accused. He took this Court through the oral as well as the entire documentary evidence on record, more particularly, the depositions of PW-1 Ramjibhai Ramlagan Thakur, the complainant, at exh.25, PW-2 Mahendraray Devendraray, exh.27 and submitted that in spite of the fact that both these crucial witnesses have turned hostile, the trial Court has heavily relied upon the evidence of these hostile witnesses. He, further submitted that on going through the evidence of injured police witnesses viz. PW-4 Sudambhai Ganpanbhai, exh.47, PW-5 Hansraj Nageshwar Upadhyay, exh.48 and PW-6 Sahebrao Shankarbhai, exh.51, there appears material contradictions as to whether these witnesses had already present when the incident had occurred or they reached subsequently at the scene of offence. He, further submitted that on going through the evidence of injured police witnesses viz. PW-4 Sudambhai Ganpanbhai, exh.47, PW-5 Hansraj Nageshwar Upadhyay, exh.48 and PW-6 Sahebrao Shankarbhai, exh.51, there appears material contradictions as to whether these witnesses had already present when the incident had occurred or they reached subsequently at the scene of offence. Moreover, as per the complaint, when the mob attacked, the complainant sent PW-2 Mahendraray Devendraray to inform the police, consequent thereto, the police personnel namely PWs-4, 5 and 6, on receiving the message deploying them for bandobast, reached to the spot and thereafter, the mob attacked and the incident in question had occurred. Moreover, he submitted that, undoubtedly the Test Identification Parade (TI Parade) had not been carried out by the Investigating Officer during investigation and during the course of recording of evidence by the trial Court of the above witnesses, on an explanation being sought for as to whether the TI Parade was carried out or not, it was replied that since they were frequenters to the said village, they were familiar with the accused persons and accordingly, the TI Parade was not carried out, however, a perusal of the depositions of these witnesses reveals material contradictions as to the names and numbers of the accused persons and the role played by each of the accused. Under the circumstances, a serious suspicion has arisen in the case of the prosecution. Moreover, when the complainant himself and other crucial witness (PW-2) both have not supported the case of the prosecution and when the prosecution has not proved the aspects of role played by the each accused and the time of deployment of the injured police personnel at the scene of offence and other such facts, besides the material contradictions, as aforesaid, the present appellants should be given benefit of doubt and accordingly, the present appeal may be allowed. 5. On the other hand, Mr. Pandya, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. He mainly submitted that regarding TI Parade of the accused and role played by each of them, as per the learned advocate for the accused, serious suspicion and doubt is created and accordingly, they should be given the benefit of doubt, however, on going through the impugned judgment and order minutely, it appears that the learned trial Judge has discussed the depositions of all the prosecution witnesses minutely and relying upon the decisions reported in i) 2000 (2) GLR 1009 more particularly, Head Notes 'A' and 'B', ii) 1999 (1) GLR 717 and iii) 1993 (3) Crimes SC 567 it is observed by the trial Court that though there appears some contradictions as to the numbers and names of the accused but the fact remains that all the accused have been identified in the Court and when Hon'ble Apex Court has specifically held in the aforesaid decision reported in 2000 (2) GLR 1009 that even though the identification parade had not been held but if the injured eyewitnesses identify the accused for the first time in the Court then also it cannot be said that the said fact is totally irrelevant or inadmissible in the eye of law and accordingly, the learned trial Judge has rightly considered the depositions of the hostile witnesses, who have, as such, supported most of the case of the prosecution. He further submitted that it is also a settled legal position that in spite of the fact that the witnesses had been declared hostile but the part of the evidence can be considered if other relevant evidence, whether oral or documentary, corroborates the same. Here three eye-witnesses have supported the case of the prosecution, as aforesaid, and if the depositions of PW-1 and PW-2 are perused and considered, it has been discussed by the trial Court that there appears no suspicion in the mind of the Court and accordingly, there is no question of granting the benefit of doubt to the accused. Making above submissions, he requested the Court to dismiss the present appeal as is having without any merits. 6. Making above submissions, he requested the Court to dismiss the present appeal as is having without any merits. 6. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. 6.1 The learned advocate for the accused has mainly submitted as regards the contradictions about the presence of the police injured eye-witness, whether was prior or after the incident in question had started and the aspect of no TI Parade had been carried out during the course of investigation and the fact that two crucial witnesses have not supported the case of the prosecution viz. the complainant himself i.e. PW-1 Ramjibhai Ramlagan Thakur, exh.25 and PW-2 - Mahendraray Devendraray, exh.27. In this regard, I have gone through their evidence and also the complaint at exh.26. I have also gone through the relevant depositions of PW-4 Sudambhai Ganpatbhai at exh.47, PW-5 Hansraj Nageshwar Upadhyay, exh.48 and PW-6 Sahebrao Shankarbhai, exh.51 viz-à-viz the impugned judgment and order. So far as the complainant and the PW-2 are concerned, though it is a fact that they have not supported the case of the prosecution, however, at the same, the Court can certainly rely upon the part of the evidence, which gets corroboration to the other evidence on record and accordingly, in the opinion of this Court, the learned trial Judge has committed no error in relying upon the evidence of the hostile witnesses, which otherwise is getting corroboration from the other evidence on record. Referring to the cross-examination of PW-1, who according to learned advocate for the accused, has been declared as hostile and hence, his deposition should not be considered by the trial Court but this PW-1 had been cross-examined by the defence lawyer before the trial Court and following facts have come on the record in para 8, 9 and 10 of the said deposition of PW-1 recorded vide exh. 25. In the cross-examination, the PW-1 has admitted that survey No. 26, admeasuring 16 acres of land is disputed land. He had denied that he had purchased the same for the consideration of Rs. 41 lakh. He had purchased the same for 14 lakh in the year 1992 by a written document. 25. In the cross-examination, the PW-1 has admitted that survey No. 26, admeasuring 16 acres of land is disputed land. He had denied that he had purchased the same for the consideration of Rs. 41 lakh. He had purchased the same for 14 lakh in the year 1992 by a written document. He has denied that since the disputed land had been purchased, the incidents of breach of peace had started occurring and he volunteered that after one season, such incidents had been occurring. He has also denied that because the disputed land was in possession of the accused, Yusuf Shaikh and Ejju Shaikh had not purchased the same. He has also denied that, he had not produced the documents and power before the police. The learned advocate for the appellants has argued that though the documents related to land in question and power had been produced by the PW-1 before the police, the same had not been incorporated with the Charge-sheet and not come on record. In my view, so far as the facts of this case are concerned, if at all the said documents had not come on record, it would not be prejudicial to the accused herein. It is also pertinent to note that regarding the above defence, nothing is produced in the Further Statements of the accused, recorded before the trial Court nor had anything been explained in the said Further Statements. The PW-1 has deposed that, it is not within his knowledge that the accused had filed applications before the Mamlatdar and the Collector for getting the declaration that they were the tenants (ganotiya) of the land of incident i.e. offence on the land is concerned. From the above-referred evidence, forthcoming on record, it cannot be said that the accused are alien to the land in question and they have been wrongly roped in the offence. In fact, they have lodged their claim before the Mamlatdar and the Collector to declare them tenants (ganotiya) and the result of the same was yet to come from the office of the Mamlatdar and the Collector and thus, they are the interested person qua the land in question. In fact, they have lodged their claim before the Mamlatdar and the Collector to declare them tenants (ganotiya) and the result of the same was yet to come from the office of the Mamlatdar and the Collector and thus, they are the interested person qua the land in question. 6.2 So far as the contradiction as to the presence of the police personnel at the place of offence, whether prior to or after the incident had started is concerned, though there appears minor contradictions as to the timings in the depositions of above three police witnesses, however, it is also a fact that they were present at the spot during incident and in the incident they have also sustained injuries and their Medical Certificates are also produced on record vide exhs. 46, 33 and 32 respectively. Thus, for a minor contradiction as to timing of their presence, whether prior to or after the incident was started, their evidence, which otherwise support the case of the prosecution, cannot be discarded, more particularly, on this hyper-technical ground. Moreover, the depositions of these witnesses substantiate the facts of the incident and the role played by the accused. Moreover, the Court cannot lose a sight of the fact that when a mob, consisting so many people, attacks a few people, it is very difficult to narrate the exact incident and the role played by each person in a mob in precise. So far as the contention of the learned advocate for the accused that no TI Parade had been carried out during the course of investigation is concerned, it is not in dispute, however, from the evidence of the aforesaid police personnel it has come out that since they were frequenters of the village they knew the accused and hence, the TI Parade was not conducted and this fact is admitted by them before the trial Court in the depositions. Moreover, looking to the impugned judgment and order, it appears that the learned trial Judge has discussed the depositions of all the prosecution witnesses minutely and relying upon the decisions in i) Ramanbhai Naranbhai Patel v. State of Gujarat, reported in 2000 (2) GLR 1009, ii) Patel Rasikbhai Bhagwandas v. State of Gujarat, reported in 1999 (1) GLR 717 and iii) P. Babu v. State of Andhra Pradesh, reported in 1993 (3) Crimes SC 567, it is observed that though there appears some contradictions but the fact remains that all the accused have been identified. In Ramanbhai Naranbhai Patel (supra) the Hon'ble Apex Court has specifically held as under: "(C) Indian Penal Code, 1860 (XLV of 1860) - Secs. 149, 302, 307 &326 - Injured eye-witnesses identified accused persons for the first time in Court - Even though no identification parade was held, such evidence cannot be said to be totally irrelevant or inadmissible. 'It is true that the injured eye-witness Bhogilal Ranchhodbhai - PW 2 and Karsanbhai Vallabhbhai - PW 14 tried to identify the accused only in the Court and they were not knowing them earlier. Another witness Niruben also did not know them earlier as deposed to by her. It is equally true that identification parade was not held but that would not mean that the witnesses who suffered grievous injuries were out to rope in wrong accused leaving out real culprits. So far as witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai are concerned, their evidence cannot be treated to be totally non est due to absence of identification parade. The said evidence may be treated to be one of a weak nature but cannot be said to be totally irrelevant or inadmissible'. (Para 17)" 6.2.1 Moreover, in the decision in Patel Rasikbhai Bhagwandas (supra), this Court has observed in Head Note (A) as under: "(A) Criminal Procedure Code, 1973 (II of 1974) - Sec. 374 - Indian Penal Code, 1860 (XLV of 1860) - Secs. (Para 17)" 6.2.1 Moreover, in the decision in Patel Rasikbhai Bhagwandas (supra), this Court has observed in Head Note (A) as under: "(A) Criminal Procedure Code, 1973 (II of 1974) - Sec. 374 - Indian Penal Code, 1860 (XLV of 1860) - Secs. 302 & 307 - Appreciation of evidence - Injured witness - Factors to be kept in mind while appreciating evidence of injured witness stated: 'In a case of criminal trial particularly, like one on hand, we appreciate the evidence keeping in mind Sec.374 of the Evidence Act, following aspects which have been, particularly, expounded and settled must be kept before the mental-radar:-- (i) Injured witness person can not be doubted at the venue of offence. Therefore, persons who have sustained injuries, obviously, would be present. (ii) Injured persons have no reason to falsely implicate the accused persons in place of real offenders who gave serious blows to them. (iii) Again, it may, also, be remembered that the evidence of such injured witness carries more weight and high degree of creditworthiness. (iv) It must also be mentioned what was the instantaneous reaction of such witness would depend upon circumstances and improbables. Therefore, in the place of such witness some minor defective or tiny contradiction can not be regarded as a titanic to sink the whole ship of culpability. Such micro level inconsistency like slight change in description of weapon, on the spot factual circumstances, and the manner, time or some insignificant unimport, exaggeration or even embellishment ought to be discarded, and they should not be considered defective evidence of such persons. (v) It must, also, be kept in mind while evaluating and scanning the evidence of such witness with the criticism of the court and the evidence kept in focus which attracts the guilt of the accused and not the minor inconsistencies or discrepancies which might have happened which might have generated out of the power of observation, emergent situation, lapse or loss of memory which may happen on account of stereotype, monotonous or at times, faulty, investigation. (vi) It must also be recalled that even in case of a truthful witness by one or other reason there is at times contingency to make improvement or embellishment with a view to pick up correct and true version in his testimony. (vi) It must also be recalled that even in case of a truthful witness by one or other reason there is at times contingency to make improvement or embellishment with a view to pick up correct and true version in his testimony. It, therefore, becomes necessary to see that the exaggerated or untrue aspects are discarded but not the reliable testimony of the injured witness'. (Para 14)" 6.2.2 Further, in P. Babu (supra) the Hon'ble Apex Court has observed as under: "...Ex. P-6 is the injury certificate. It appears that it was noted in Ex. P-6 against an entry that the injured was said to have been stabbed by somebody. Placing much reliance on this entry, Public Witness 10 was asked in the cross-examination as to how it was made. Public Witness 10 stated that the deceased stated so in the first instance. The learned counsel relying on this admission sought to contend that the deceased was not aware as to who stabbed him. We see no force in this submission. It is a matter of common knowledge that such entry in the injury certificate does not necessarily amount to a statement. At that stage the doctor was required to fill up that column in a normal manner and it was not the duty of the doctor to enquire from the injured patient about the actual assailants and that the inquiry would be confined as to how he received the injuries namely the weapons used etc." 6.3 Accordingly, the learned trial Judge has rightly considered and evaluated the depositions of the hostile witnesses as well as the other prosecution witnesses. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the learned trial Judge has committed no error, which requires interference at the hands of this Court, more particularly, when for the findings and conclusion of conviction and sentence, plausible reasons have been given. Moreover, the trial Court, while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, the learned advocate for the appellants - accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. Further, the learned advocate for the appellants - accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, I am of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 7. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly, and the impugned judgment and order dated 30/01/2001, passed by the learned Additional Sessions Judge, Valsad @ Navsari, in Sessions Case No. 107 of 1994, is hereby confirmed. The appellants - accused are reported to be on bail. Their bail bonds shall stand cancelled and they are directed to surrender to custody within a period of 12 weeks from today, failing which, the concerned investigating agency shall take appropriate steps in accordance with law. Registry to return the R&P to the trial Court forthwith.