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2017 DIGILAW 1656 (GUJ)

Lalabhai Mohanbhai Nayak v. State of Gujarat

2017-09-16

BELA M.TRIVEDI, SONIA GOKANI

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JUDGMENT : BELA M. TRIVEDI, J. 1. Since, both the appeals arise out of the common judgment and order dated 24.01.2011, passed by the 2nd Additional Sessions Judge, Panchmahal, Godhra, rendered in Sessions Case No. 184 of 2009 and Sessions Case No. 119 of 2009, they were heard together and this common judgment is being pened. 2. Criminal Appeal No. 995 of 2013 arises out of the Sessions Case No. 184 of 2009, whereby, the Sessions Court has convicted the accused-appellant Lalabhai Mohanbhai Nayak, for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay fine of Rs. 1,000/- and in default thereof to undergo, further rigorous imprisonment for one month. Whereas, the Criminal Appeal No. 1465 of 2011, filed by the appellant-State arises out of the Sessions Case No. 119 of 2009, whereby, the Sessions Court has acquitted the co-accused- Opponent Mohanbhai Dhanjibhai Nayak, for the offence punishable under Section 114 read with Section 302 of the Indian Penal Code. 3. The brief facts giving rise to the present appeals are that, as per the case of the prosecution, on 26.03.2009, the complainant Bhikhiben Naranbhai Nayak, lodged a complaint with Rajgadh Police Station, alleging, inter-alia, that on 26.03.2009 at about 08:00 a.m. her brother Dashrath and one Lalabhai Mohanbhai Nayak had gone for labour work and they returned at about 06:00 p.m. At about 09:30 p.m. when her brother was sitting on the couch outside their house, the said Lalabhai came there and asked her brother Dasrath to come with him to his house. At about 10:15 p.m. the said Lalabhai came abusing Dashrathbhai. He was asking Dasrathbhai as to why, he was not repaying the money borrowed by him. It was, further, alleged in the complaint that, at that point of time, her neighbours, Isubbhai Pathan, and his son Mehboob Isubbhai Pathan were present and they asked them not to fight. However, Lalabhai got enraged and his father Mohanbhai caught hold of Dasrathbhai and the said Lalabhai inflicted blows of ‘Kosh’ (a sharped tipped instrument used for digging) on the head of Dasrathbhai, as a result thereof Dasrathbhai died on the spot. The accused, then, fled away therefrom. 4. However, Lalabhai got enraged and his father Mohanbhai caught hold of Dasrathbhai and the said Lalabhai inflicted blows of ‘Kosh’ (a sharped tipped instrument used for digging) on the head of Dasrathbhai, as a result thereof Dasrathbhai died on the spot. The accused, then, fled away therefrom. 4. The complaint of the complainant came to be registered as I-C.R. No. 44/2009 at the Rajgadh Police Station for the offences punishable under Sections 302 and 114 of the Indian Penal Code and Section 135(1) of the Bombay Police Act against the accused Lalabhai and Mohanbhai. It appears that the accused Lalabhai was absconding, and therefore, the IO, on completion of the investigation had initially submitted a charge-sheet against the accused Mohanbhai only in the Court of the Judicial Magistrate, First Class, Goghamba, which came to be registered as Criminal Case No. 311 of 2009. The accused, Lalabhai, came to be arrested subsequently and therefore, the IO concerned submitted a supplementary charge-sheet qua Lalabhai before the very Court, which was registered as Criminal Case No. 474 of 2009. Since, the Sessions Court had the powers to conduct the trial for the offence under Section 302 of the IPC, both the cases were committed to the Sessions Court, Panchmahal at Godhra (for short, ‘the Trial Court’). The trial Court framed the charge against both the accused vide Exhibit-6 for the offences punishable under Sections 302 and 114 of the IPC and Section 135 of the Bombay Police Act. Since, both the accused did not plead guilty and claimed to be tried, the trial was conducted. 5. The prosecution examined as many as 11 witnesses, over and above producing the documentary evidence, to prove its case. On the completion of the evidence by the prosecution, the statements of both the accused, under Section 313 of the Code of Criminal Procedure, came to be recorded, wherein, both the accused denied the allegations levelled against them and stated that they were falsely implicated in the case. The trial Court, after appreciating the evidence on record, convicted the accused, Lalabhai, for the offence punishable under Section 302 of the IPC, whereas, acquitted the co-accused, Mohanbhai, from the charges levelled against him, by the impugned common judgment and order. 6. So far as the Criminal Appeal No. 995 of 2013 filed by the appellant-accused, Lalabhai, is concerned, learned Advocate, Mr. 6. So far as the Criminal Appeal No. 995 of 2013 filed by the appellant-accused, Lalabhai, is concerned, learned Advocate, Mr. Patadiya, took this Court through the oral as well as the documentary evidence led by the prosecution before the trial Court and vehemently submitted that none of the witnesses examined by the prosecution could be said to be an eye-witness. According to him, the complainant Bhikhiben was sitting in her house and had not seen the accused Lalabhai inflicting injuries on the deceased Dashrathbhai. He, further, urged that she had improvised her version before the Court on many vital issues which were not stated by her in her statement before the police. As regards the evidence of other witnesses, more particularly of PW-6 Isubhai and his son PW-7 Mehboobbhai, he submitted that there were many contradictions in their evidence before the Court and their statements given before the police, and that they were merely chance witnesses, whose evidence should be read cautiously. In this regard he has sought to rely upon the decision of the Apex Court Baby @ Sebastian vs. Circle Inspector of Police, AIR 2016 SC 3671 and submit that the presence of the said witnesses at the place of occurrence having not been satisfactorily explained, their testimonies have become doubtful. He also drew the attention of this Court to the evidence of PW-8, Naranbhai Maganbhai Nayak, who happened to be the husband of the complainant Bhikhiben and PW-9 Narvatbhai Kalubhai Nayak, who happened to be the brother of the deceased to submit that though they were not the eye-witnesses to the incident in question, the trial Court had committed a grave error in treating them as eye-witnesses. 7. According to the learned Advocate, Mr. Patadiya, there were many flaws in the investigation carried out by the IO, inasmuch as the muddamal ‘Kosh’, allegedly recovered from the accused Lalabhai was sent for examination to Forensic Science Laboratory and there was no blood stain found thereon. Further, as per Serological Report (Exhibit-50), the blood group of the blood found on the clothes of the accused Mohanbhai was of ‘O’ group. Hence, according to him, there was hardly any direct evidence, connecting the accused Lalabhai with the alleged offence. Learned Advocate, Mr. Patadiya, however, supported the impugned judgment and order of the trial Court to the extent it acquitted the accused Mohanbhai for the charges levelled against him. 8. Hence, according to him, there was hardly any direct evidence, connecting the accused Lalabhai with the alleged offence. Learned Advocate, Mr. Patadiya, however, supported the impugned judgment and order of the trial Court to the extent it acquitted the accused Mohanbhai for the charges levelled against him. 8. Learned APP, Mr. Patel, appearing for the opponent-State submitted that the complainant Bhikhiben had lodged the complaint in respect of the alleged incident, immediately after it took place and there is no reason to disbelieve her version, more particularly, when there is no discrepancy found in her deposition recorded before the trial Court and the contents of the complaint lodged by her. He, further, submitted that apart from the complainant-PW 5, PW Nos. 6, 7, 8 and 9 have also categorically stated as to how the alleged offence had taken place and therefore, merely because those witnesses happen to be the relatives and the neighbours of the complainant, their evidence cannot be discarded. He, further, urged that the presence of the accused, Mohanbhai and his role in the alleged offence was very much proved by the prosecution, however, the same has been mis-appreciated by the Sessions Court qua him. 9. In the instant case, it is not in dispute that the deceased Dashrathbhai, expired on account of the head injuries, as mentioned in the P.M. Note (Exhibit-11). PW-1, Dr. Parasbhai Shrimangilal, who had carried out the post motem of the deceased Dashrathbhai, categorically stated about the injuries sustained by the deceased and about the cause of his death being due to neurohemorrhagic shock caused by the head injury by assault of hard and blunt object on the scalp. In the cross-examination, he had stated that such injuries were possible with the iron Kosh. Hence, it was duly proved by the prosecution that the deceased Dashrathbhai had not died a natural death but had died due to culpable injuries, which were sufficient in ordinary course of nature to cause death. 10. To prove the involvement of the accused Lalabhai in the alleged incident, the prosecution had examined the complainant Bhikhiben at Exhibit-31, who, fully corroborated her complaint (Exhibit-32). There is hardly any discrepancy in the allegations made by her in the complaint and her evidence before the Court. 10. To prove the involvement of the accused Lalabhai in the alleged incident, the prosecution had examined the complainant Bhikhiben at Exhibit-31, who, fully corroborated her complaint (Exhibit-32). There is hardly any discrepancy in the allegations made by her in the complaint and her evidence before the Court. Though, in her cross- examination, it was sought to be suggested that, at the time of the alleged incident, she was inside her house and had not seen the actual occurrence, she had categorically denied the said suggestion and stated that she was very much present and had seen that the accused Mohanbhai had caught hold of her brother Dashrathbhai and the accused Lalabhai had inflicted blows on his head. 11. It is pertinent to note that in her complaint, she had stated that her neighbours, Isubhai Pathan and his son Mehboobbhai Pathan, were present and they had tried to intervene when the accused Lalabhai was abusing the deceased. 12. The said Isubbhai Pathan was examined as PW-6 at Exhibit-34 and Mehboobbhai Pathan was examined as PW-7 at Exhibit-35. Both of them had stated that the deceased Dashrathbhai was inflicted blow of Kosh on his head by the accused Lalabhai, which resulted into his death. Of course, both these witnesses have stated that, at that point of time, the accused Mohanbhai was standing aside. They have not stated about any overt act done by the said Mohanbhai. Nonetheless, both of them have categorically stated about the role played by the accused Lalabhai as to how he had inflicted injuries on the head of the deceased Dashrathbhai with Kosh. 13. The PW-8 Naranbhai Maganbhai Nayak, who happened to be the husband of the complainant and PW-9, Narvatbhai Kalubhai Nayak, who happened to be the brother of the deceased have fully supported the case of the prosecution. They duly were cross-examined by the defence, however, nothing substantial helpful to the defence could be brought out from the same. 14. The P.W. 11 IO, Shanabhai Mulabhai Parmar, was examined at Exhibit-45. He had deposed about the investigation carried out by him and about the arrest of the accused persons as well as the filing of the charge-sheet against them. 15. 14. The P.W. 11 IO, Shanabhai Mulabhai Parmar, was examined at Exhibit-45. He had deposed about the investigation carried out by him and about the arrest of the accused persons as well as the filing of the charge-sheet against them. 15. Having regard to the afore-stated evidences, it clearly transpires that the prosecution had successfully brought home the charges levelled against the accused Lalabhai, by examining the concerned witnesses, i.e. the complainant, her husband, her brother, her neighbours etc., whose presence at the time and immediately after the alleged incident was very natural. Although, learned Advocate, Mr. Patadiya, for the appellant Lalabhai had sought to rely on some minor discrepancies in their evidence to dislodge the case of the prosecution, the same has no substance. Such discrepancies in evidence of the witnesses before the Court is very natural. Every discrepancy cannot be termed as major contradiction. 16. At this juncture, it would be beneficial to refer to the observations made by the Apex Court in A. Shankar vs. State of Karnataka, AIR 2011 SC 2302 , which reads thus: "17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labeled as omissions or contradictions. The omissions which amount to contradictions in material particulars, i.e. materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence." 17. In the instant case, as stated earlier though all the material witnesses were thoroughly cross-examined, the defence had failed to corrode their credibility. Minor discrepancies in their evidence did not affect the core case of prosecution. Though it was sought to be argued by the learned Advocate, Mr. Patadiya, that the PW Nos. 6 and 7 being the neighbors and the PW Nos. 5, 8 and 9 being the relatives of the deceased Dashrathbhai, there was a possibility of false implication of the accused, this Court does not find any substance in the same. It can not be gainsaid said that the evidence of witnesses should not be discarded, merely because they happened to be the relatives or neighbours of the deceased Dashrathbhai. The Apex Court in the case of Sundersingh vs. Sate of Uttaranchal, (2010) 10 SCC 611 , has held that merely because the witnesses happen to be the kith and kin of the deceased, he or she cannot be said to be an interested witness and their evidence cannot be viewed as that of an interested witness. In the instant case, the evidence of the witnesses examined by the prosecution having been found to be trustworthy and reliable, the Court has no reason to disbelieve their evidence. 18. It is true that there are some lapses on the part of the IO concerned in carrying out the investigation inasmuch as he did not send the muddamal article to the FSL for its examination. 18. It is true that there are some lapses on the part of the IO concerned in carrying out the investigation inasmuch as he did not send the muddamal article to the FSL for its examination. There is also nothing on the record to suggest that the IO had collected the blood sample and the controlled sample from the scene of offence and had sent the same to the FSL for its examination. However, the benefit of the lapse in investigation or laxity on the part of the IO cannot be given to the accused, more particularly, when the prosecution has proved the guilt of the accused Lalabhai beyond reasonable doubt by adducing reliable and cogent oral as well as documentary evidence. 19. In Paras Yadav vs. State of Bihar, (1999) 2 SCC 126 , the Apex Court has observed that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. 20. In the light of aforesaid factual and legal position, this Court has no hesitation in holding that the prosecution had proved the guilt of the appellant Lalabhai beyound reasonable doubt and the trial Court has rightly convicted him for the offence punishable under Section 302 of the IPC. 21. So far as the Criminal Appeal No. 1465 of 2011 filed by the appellant-State is concerned, though it is sought to be submitted by the learned APP, Mr. Patel, that the trial Court has committed an error in acquitting the accused Mohanbhai, this Court is unable to accept the said submission. It is true that the complainant Bhikhiben had alleged in her complaint as well as in her deposition before the Court that the accused Mohanbhai had caught hold of the deceased Dashrathbhai and the accused Lalabhai had inflicted blows on him, PW Nos. 6 and 7 did not support the case of the prosecution against the accused Mohanbhai. Both PW Nos. 6 and 7 did not support the case of the prosecution against the accused Mohanbhai. Both PW Nos. 6 and 7 had stated that the accused Mohanbhai did not play any overt act and he was just standing aside, and that it was only the accused Lalabhai, who had inflicted blows on the head of the deceased Dashrathbhai. Under the circumstances, it would be a risky proposition relying upon the evidence of the complainant Bhikhiben alone to hold the accused Mohanbhai guilty for the alleged offence. 22. It is settled legal position that the appellate Court has power to review the evidence in appeal against the acquittal as extensively as it has powers in an appeal against the conviction, nonetheless, when the two views are possible, the appellate Court should not reverse the judgment of acquittal merely because the other view is possible. It is the duty of the prosecution to prove the guilt of the accused beyound reasonable doubt, which the prosecution had failed to prove against the respondent Mohanbhai. 23. In the result, this Court does not find any illegality or infirmity in the judgment and order passed by the Sessions Court in convicting the accused Lalabhai for the offence punishable under Section 302 of the IPC and in acquitting the accused Mohanbhai for the offence punishable under Section 114 read with Section 302 of the IPC. 24. Resultantly, both the appeals fail and are dismissed. The impugned common judgment and order dated 24.01.2011, passed by the learned 2nd Additional Sessions Judge, Panchmahal, Godhra, rendered in Sessions Case No. 184 of 2009 and Sessions Case No. 119 of 2009 is confirmed. Appeal dismissed.