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2019 DIGILAW 1088 (GUJ)

Vijaybhai Maganbhai Rathod v. State of Gujarat

2019-11-20

A.C.RAO, BELA M.TRIVEDI

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JUDGMENT Bela M. Trivedi, J. 1. The present appeal stems out of the judgment and order dated 18.12.2014 passed by the 6th Additional Sessions Judge, Panchmahals at Godhra (hereinafter referred to as 'the Sessions Court') in Sessions Case No. 103 of 2014, whereby the appellants (original accused) have been convicted for the offence under Section 302 read with 114 of the Indian Penal Code and Section 506(2) read with 114 of the Indian Penal Code, and have been sentenced to undergo life imprisonment and pay fine of Rs. 2,000/-, in default thereof to undergo simple imprisonment for 10 days for the offence under Section 302 read with Section 114, and sentenced to undergo simple imprisonment for a period of three years for the offence under Section 506(2) read with 114 of IPC. 2. The case of the prosecution in nutshell was that some disputes with regard to cultivation of land of one Amarsinh were going on between the deceased Kanubhai Sanabhai Rathod, the husband of complainant Sangitaben Kanubhai Rathod and the accused Vijaysinh Magansinh Rathod. On the date of incident i.e. on 17.03.2014 at about 16:30 hours, all the three accused i.e. Vijaysinh Magansinh, Nayanbhai Bharatbhai, Dilipbhai Koyabhai came to the house of the complainant and started abusing her husband Kanubhai. At that time, the said Kanubhai started running towards the house of Naginbhai and all the three accused chased him and caught him. Thereafter all of them started beating him. According to the complainant, the accused Vijaysinh had beaten Kanubhai with iron rod on the rear portion of his head, the accused Nayanbhai gave stick blow on his back, and the accused Dilipbhai injured Kanubhai by giving blow with bill-hook (dharia) on his left hand. The said Kanubhai thereafter was taken to the Halol Hospital and after preliminary treatment, he was referred to S.S.G. Hospital, Vadodara, however, he expired on the way at about 21:00 hours. He therefore was brought back to the Referral Hospital, Halol. The complainant Sangitaben along with her brother-in-law Naginbhai, sister-in-law Harkhaben and another sister-in-law Shakuntalaben went to the Halol Police Station, where she lodged the complaint against all the three accused, which was registered as I-C.R. No. 32 of 2014 for the offence under Section 302, 504, 506 and 114 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The Investigating Officer PSI Dharmendrasinh Chadva had carried out the investigation and after collecting sufficient evidence against all the three accused, had submitted the chargesheet in the Court of Additional Chief Judicial Magistrate, Halol, which was registered as Criminal Case No. 1336/2014. The said case being triable by the Court of Sessions, it was committed to the Sessions Court at Godhra under Section 209 of Cr.P.C., where it was registered as Sessions Case No. 103 of 2014. 3. All the appellants - accused having denied the charges levelled against them, the prosecution had laid oral as well as documentary evidence to prove the said charges. The Sessions Court after appreciating the said evidence, convicted and sentenced all the three accused as stated hereinabove. 4. The learned advocate Mr. Vijay Patel appearing for the appellants - accused vehemently submitted that the case of prosecution was not believable as there were number of major contradictions in the depositions of witnesses examined by the prosecution as regards the time and place of the alleged incident. He drew the attention of the Court to the depositions of the witnesses more particularly of the complainant Sangitaben, witnesses Shakuntalaben, Harkhaben and Naginbhai to show that there were inconsistencies in their respective depositions, inasmuch as Sangitaben had stated inter alia that the incident had taken place near the house of Naginbhai, whereas Shakuntalaben wife of Naginbhai had admitted in her cross-examination that she along with her husband were staying at the house situated in their field which was 2½ kilometres away from the place of incident in question. So far as the time of the alleged incident is concerned, the witness Harkhaben had stated that she along with Sangitaben, Naginbhai and others had gone to the police station at 5:30 p.m., whereas Naginbhai had stated that they had gone to the police station at about 8:30 p.m., however from the evidence of the complainant Sangitaben and the complaint Exh. 44, it appeared that the complaint was lodged after 9:00 p.m. and was registered at about 10:15 p.m. Mr. Patel further submitted that all the panch witnesses had turned hostile, and therefore, the discovery of weapons allegedly made at the instance of the accused, could not be said to have been proved by the prosecution. 44, it appeared that the complaint was lodged after 9:00 p.m. and was registered at about 10:15 p.m. Mr. Patel further submitted that all the panch witnesses had turned hostile, and therefore, the discovery of weapons allegedly made at the instance of the accused, could not be said to have been proved by the prosecution. Assailing the investigation carried by the Investigating Officer, he submitted that the Investigating Officer had not produced on record the map of the scene of offence. The authenticity of the report of the FSL was also doubtful, inasmuch as there was nothing on record to suggest as to when the blood sample of the deceased as mentioned in the dispatch note (Exh. 56) was taken by the Medical Officer after the postmortem, which has been relied upon by the FSL officer while preparing the report at Exh. 59. He also submitted that the prosecution had also not produced any medical papers with regard to the treatment given to the deceased at the Referral hospital at Halol after the alleged incident, though admittedly he was given preliminary treatment in the said hospital. Hence, according to Mr. Patel, the prosecution had suppressed the genesis of the incident in question and concealed the truth for which the benefit of doubt was required to be given to the appellants. 5. The learned Public Prosecutor Mr. Mitesh Amin appearing for the State however relying upon the same set of evidence produced by the prosecution before the Sessions Court, as relied upon by learned advocate Mr. Patel for the appellants, submitted that there was no dispute with regard to the identification of any of the accused as the accused and witnesses knew each other very well. According to him, all the concerned witnesses i.e. the complainant Sangitaben, Shakuntalaben, Harkhaben and Naginbhai had consistently stated in their respective evidence as to how and where the incident had taken place. They had also categorically stated about the role played by each of the accused, and the injuries found on the dead body of the deceased also tallied with the said version of the witnesses. Mr. Amin, further submitted that though there were minor discrepancies in their respective evidence, such discrepancies were natural and could not be said to be fatal to the case of prosecution, more particularly, when presence of the witnesses was not doubted nor their credibility was impeached during their cross-examination. Mr. Amin, further submitted that though there were minor discrepancies in their respective evidence, such discrepancies were natural and could not be said to be fatal to the case of prosecution, more particularly, when presence of the witnesses was not doubted nor their credibility was impeached during their cross-examination. The complaint was also lodged within 4-5 hours after the alleged incident and immediately after the death of deceased Kanubhai. According to him, the FSL officers had arrived at the spot for preliminary examination and had collected the samples of Earth containing blood as also the control sample of Earth and other incriminating material like pieces of sticks on which blood stains were found, and therefore, even if it is believed that the prosecution had failed to produce the evidence as to when and how the blood sample of the deceased was taken after the postmortem for being sent to FSL, the blood stained Earth and other articles collected from the scene of offence, were sufficient for comparison with blood stains found on the weapons seized at the instance of the accused during the course of investigation. Mr. Amin lastly submitted that the place of offence was sufficiently described by the FSL officer PW-3 Mr. Chandubhai Pargi in his evidence before the Court and in the preliminary report Exh. 17 prepared by him. 6. In the instant case, having regard to rival submissions made by the learned advocates for the parties in the light of the record and proceedings, it appears that the prosecution in order to prove the charges levelled against the appellants - accused, had examined as many as 15 witnesses and produced number of documentary evidence. At the outset, it may be stated that the panch witnesses i.e. PW-1 Jaswantsinh Chauhan and PW-2 Umesh Rathod, in whose presence the inquest panchnama (Exh. 14) was drawn, had turned hostile. PW-4 Himmatsinh Chauhan in whose presence the panchnama of scene of offence Exh. 19 was prepared, also had turned hostile. Panch witnesses PW-5 Rakesh Shah and PW-6 Jitendra Bhagat, in whose presence the discovery panchnama under Section 27 of Cr.P.C. at Exh. 25, arrest panchnama Exh. 26 and panchnama for seizure of the clothes of the accused at Exh. 27 were drawn, had turned hostile. However, the Investigating Officer PW-15 PSI Dharmendrasinh Chavda had proved the said panchnamas and stated about the investigation carried out by him. 7. 25, arrest panchnama Exh. 26 and panchnama for seizure of the clothes of the accused at Exh. 27 were drawn, had turned hostile. However, the Investigating Officer PW-15 PSI Dharmendrasinh Chavda had proved the said panchnamas and stated about the investigation carried out by him. 7. It cannot be gainsaid that merely because the panch witnesses had turned hostile, which normally is their tendency, the entire case of prosecution could not be said to have vitiated. A very pertinent observation made by the Supreme Court in the case of Anter Singh versus State of Rajasthan reported in 2005 SCC (Cri.) 597 be reproduced in this regard: - "We shall first deal with the plea as to whether evidence relating to recovery is acceptable when non-official witnesses did not support the recovery and made departure from the statements made during investigation. In Modan Singh v. State of Rajasthan ( 1978 (4) SCC 435 ) it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was taken in Mohd. Aslam v. State of Maharashtra ( 2001 (9) SCC 362 ). It was held even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated. But the crucial question which needs to be considered in this case is whether the prosecution has been able to show that the pistol recovered was the one which was used for commission of the offence ............" 8. Hence, let us examine as to whether the prosecution had successfully brought home the charges levelled against the accused by producing other cogent evidence. Now as per the case of prosecution, PW-8 complainant Sangitaben, PW-9 Shakuntalaben-sister-in-law of Sangitaben, PW-10 Harkhaben-another sister-in-law of Sangitaben, and PW-11 Naginbhai-Brother-in-law of Sangitaben, had witnessed the alleged incident. The complainant Sangitaben who happened to the wife of deceased Kanubhai, had categorically stated in her substantive evidence before the Court as to how and where the incident had taken place, which corroborated the contents of the complaint (Exh. 44). The complainant Sangitaben who happened to the wife of deceased Kanubhai, had categorically stated in her substantive evidence before the Court as to how and where the incident had taken place, which corroborated the contents of the complaint (Exh. 44). According to her, on the date of incident at about 4:30 p.m., when she, her husband and her son were at home, all the three accused Vijay, Nayan and Dilip had come to their house and started abusing her husband Kanubhai. Her husband therefore started running away towards the house of Naginbhai, her brother in-law, and all the three accused had chased her husband and beaten him. At that time, Vijay had given blow with iron pipe, Dilip had given blow on the left hand with bill-hook and Nayan had given stick blow on the back of her husband. Thereafter, all the three had run away from the place. She along with others had taken her husband to the Halol hospital and thereafter to the S.S.G. Hospital at Vadodara. However, her husband had expired on the way at village Jharod. She had identified the accused sitting in the Court as also the respective muddamal articles shown to her in the Court. She had identified her signature on the complaint at Exh. 44. In the cross-examination, she had admitted that the incident was narrated by her brother-in-law Naginbhai to the police officer and she had put her signature on the complaint. She had also admitted that 2-3 years back, a quarrel had taken place between Vijay and her family members in respect of which a complaint was registered as her brother-in-law Rajubhai had teased the wife of Vijaybhai. She had stated that there was house of Ganpatbhai adjacent to her house, and thereafter, there was some open Vada adjacent to one Naliya (culvert), and the house of Naginbhai was nearby to her house. She had admitted that Naginbhai had also another house in the field and he was staying there. She had denied that since the accused had lodged a complaint against her husband, she had falsely implicated the accused in the instant case. 9. The said version of the complainant Sangitaben was also corroborated by the witness Shakuntalaben, who happened to be her sister-in-law and wife of Naginbhai Rathod. She had denied that since the accused had lodged a complaint against her husband, she had falsely implicated the accused in the instant case. 9. The said version of the complainant Sangitaben was also corroborated by the witness Shakuntalaben, who happened to be her sister-in-law and wife of Naginbhai Rathod. The witness Shakuntalaben had also stated that the incident had taken place as some quarrel was going on in respect of the land of Amarsinh between the accused and the deceased Kanubhai. At the time of incident, she was at her home along with her sisters-in-law, and at that time all the three accused with weapons in their hands had come to their house and started beating the deceased Kanubhai. According to her, Dilipbhai had given blow with bill-hook on the left hand of Kanubhai, Nayan had given stick blow on the back and Vijay had given pipe blow on the back of the head of Kanubhai. In the cross-examination, she had denied that she along with others were not present at the time of incident. of course, she had stated that they all had gone to the police station for lodging the complaint, however her husband Naginbhai had given the complaint and Sangitaben had put her signature. She had also stated that the street where the incident had taken place was 2½ kilometres away from their field. PW-10 Harkhaben Parmar, who happened to be the sister-in-law of Naginbhai and cousin of deceased kanubhai, had also stated inter alia that she along with others had seen the incident of the accused beating the deceased Kanubhai with pipe, bill-hook and stick. She had also stated that she along with others had gone to the police station for lodging the complaint. of course she had stated that they had gone at about 5:30 p.m. to the police station. PW-11 Naginbhai Rathod had also supported the version of Sangitaben, Shakuntalaben and Harkhaben as regards the accused beating Kanubhai near his house and he along with others having gone to the Referral hospital at Halol for the treatment of Kanubhai. He had identified all the three accused sitting in the Court and also the muddamal articles shown to him in the Court by stating that the accused Vijay had pipe, Dilip had dharia and Nayan had lakdi at the time of incident in question. He had identified all the three accused sitting in the Court and also the muddamal articles shown to him in the Court by stating that the accused Vijay had pipe, Dilip had dharia and Nayan had lakdi at the time of incident in question. In the cross-examination, he had denied that at the time of incident, he was in the field. He had also denied that the entire complaint was dictated by him and Sangitaben was sitting outside the police station. He had admitted that his house and house of Kanubhai were nearby in the street, however, he had denied that he had not seen the alleged incident and that kanubhai was murdered by some other persons and the accused were being falsely implicated. He had also denied that since the complaint was filed against Kanubhai by the accused, all the three accused were falsely implicated in the instant case. 10. In light of the afore stated evidence of the four witnesses, the evidence of FSL officer PW-3 Chandubhai Pargi and other witnesses is also required to be considered. He had stated in his deposition before the Sessions Court that on the receipt of the Vardhi on 18.03.2014, he had gone to the place of offence which was kacha road 29 feet away from the house of Naginbhai Rathod, where the blood stains were found. He had directed to collect the Earth containing blood stains and also the samples of control Earth, as also pieces of sticks having blood stains from the scene of offence for the purpose of examination. He had also prepared the preliminary report which was placed on record at Exh. 17. The PW-12 Amarsinh Parmar, examined by the prosecution, had stated that his land was situated near the well of Kanubhai and during the period of incident in question, his jameen was being cultivated by Kanubhai as he had mortgaged the land to him. of course he had stated that he did not know as to how the incident had taken place. Similarly PW-13 Raman Udesinh Parmar had also stated that his land was situated in the village Abhetva and was mortgaged with one Dashrathsinh, however, was being cultivated by Kanubhai. He also pleaded ignorance as to how the incident had taken place and how Kanubhai had expired. 11. Similarly PW-13 Raman Udesinh Parmar had also stated that his land was situated in the village Abhetva and was mortgaged with one Dashrathsinh, however, was being cultivated by Kanubhai. He also pleaded ignorance as to how the incident had taken place and how Kanubhai had expired. 11. From the afore discussed evidence of the witnesses examined by the prosecution, it appears that four witnesses complainant Sangitaben, Shakuntalaben, Harkhaben and Naginbhai had consistently stated that on the date of incident, they were at home and all the three accused had come abusing Kanubhai and when Kanubhai had started running away towards the house of Naginbhai, they had chased Kanubhai and beaten him with iron rod, bill-hook and stick. All the four had stated that the accused Dilip had given blow with bill-hook on the left hand, Vijaybhai had given blow with pipe on the backside of the head and Nayanbhai had given blows with stick on the back of Kanubhai, as a result thereof Kanubhai fell down on the road and they all fled away from the place. When the said witnesses tried to intervene, the accused threatened them to beat. It also emerges that initially the said Kanubhai was taken to Referral hospital at Halol, and thereafter was referred to the S.S.G. Hospital at Vadodara, however, on the way, he had expired, and therefore, they came back to the Referral hospital at Halol, where the inquest panchnama was carried out. They all thereafter had gone to Halol police station for lodging the complaint which was registered at about 22:15 hours. 12. Though it was emphatically submitted by the learned advocate Mr. Patel for the appellants that place of incident was not clearly established and that there were discrepancies in the time mentioned by the witnesses as to when they went to the police station, the Court does not find any substance in the same. Apart from evidence of Sangitaben who had stated that when her husband Kanubhai started running towards the house of Naginbhai, which was situated nearby her house, all the three accused chased him and then caught him and beaten him. The FSL officer in his evidence and in the preliminary report prepared by him, had categorically stated that the place of offence was 29 feet away on the eastern side of the Naginbhai's house. The FSL officer in his evidence and in the preliminary report prepared by him, had categorically stated that the place of offence was 29 feet away on the eastern side of the Naginbhai's house. He had also collected the samples of Earth containing blood stains and other articles as also the control sample of Earth from the said place. There is no reason to disbelieve the said FSL officer who is an independent witness. Though there is some discrepancies in the evidence of said witnesses as to when they went to the police station for lodging the complaint, it clearly transpires from the evidence of Investigating Officer that the complaint was taken down by him as stated by the complainant Sangitaben on 17.03.2014 which was registered as I-C.R. No. 32 of 2014 at 22:15 hours on 17.03.2014. These minor discrepancies or contradictions as regards the time as to when the complainant and others went to the police station, have hardly any significance. As held by the Supreme Court in the case of State of M.P. versus Dal Singh and others reported in AIR 2013 SC 2059 , the discrepancies, embellishments and improvements in the testimonies are bound to occur for the reason that the witnesses owing to errors of memory due to lapse of time, or errors owing to mental disposition, such as feeling shock and horror that existed at the time of occurrence, however the same do not erode the credibility of the witnesses unless they materially affect the trial or the core of the prosecution case. 13. There is nothing on record to suggest as to why evidence of complainant Sangitaben and other witnesses who were the relatives and staying nearby her house, should not be believed. It is true that evidence of relatives or the interested witnesses should be carefully scrutinized by the Court, however, merely because they happened to be the relatives, their evidence cannot be discarded in toto when their presence at the time of incident in question is found to have been proved by cogent evidence. The Supreme Court in the case of Dalip Singh and others versus State of Punjab reported in AIR 1953 SC 364 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. The Supreme Court in the case of Dalip Singh and others versus State of Punjab reported in AIR 1953 SC 364 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. While dealing with the similar question, the Supreme Court in the case of Mahesh son of Janardhan Gonnade versus State of Maharashtra reported in (2008) 13 SCC 271 , held in para 38 as under: - "This Court in Salim Sahab v. State of M.P.[ (2007) 1 SCC 699 ] held that mere relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In Masalti v. State of U. P. [ AIR 1965 SC 202 ] this Court observed: (AIR pp. 209-210, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan, would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." To the same effect are the decisions in State of Punjab v. Jagir Singh [ (1974) 3 SCC 277 ], Lehna v. State of Haryana [ (2002) 3 SCC 76 ] and Gangadhar Behera v. State of Orissa [ (2002) 8 SCC 381 ]. 14. The version of the said witnesses also gets corroboration from the evidence of Medical Officer PW-7 Dr. Dharmendrasinh Chauhan, who had carried out the postmortem of deceased Kanubhai at 9:30 a.m. on 18.03.2014. He had narrated the internal and external injuries found on the dead body of the deceased Kanubhai which tallied with the injuries narrated by the said witnesses as given by the accused with bill-hook, pipe and stick. Dharmendrasinh Chauhan, who had carried out the postmortem of deceased Kanubhai at 9:30 a.m. on 18.03.2014. He had narrated the internal and external injuries found on the dead body of the deceased Kanubhai which tallied with the injuries narrated by the said witnesses as given by the accused with bill-hook, pipe and stick. The said Medical Officer had also stated that the said injuries were sufficient to cause death in ordinary course of nature and the cause of death was due to cerebral shock due to head injury associated with fracture of rib and spleens injury. It is true that from the postmortem report, it appears that the deceased was given some preliminary treatment in the hospital as the stitches with bandage were found to be present on the body, however, merely because the case papers with regard to the preliminary treatment given to the deceased at the Referral hospital at Halol were not produced by the prosecution, it could not be said that the very genesis of the incident was suppressed by the prosecution, as sought to be submitted by Mr. Patel for the appellants. It has been held by the Supreme Court in catena of decisions that the exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubt or lingering suspicions and thereby destroy of social defence. The paramount consideration of the Court should be to avoid miscarriage of justice, which may arise by acquitting the guilty. The beneficial reference of the decisions of the Supreme Court in the case of Gurbachan Singh vs. Satpal Singh & Ors. reported in AIR 1990 SC 209 , in the case of Krishna Mochi and others versus state of Bihar reported in AIR 2002 SC 1965 , in the case of Allarakha K. Mansuri versus State of Gujarat reported in (2002) 3 SCC 57 , and in the case of Bhagwan Singh and others versus State of M.P. reported in 2002 4 SCC 85 , be made in this regard. 15. In view of the above, the Court is of the opinion that the prosecution had duly proved the charges levelled against all the appellants - accused and the Sessions Court has rightly convicted them for the alleged offences. The present appeal being devoid of merits, deserves to be dismissed and is accordingly dismissed. 15. In view of the above, the Court is of the opinion that the prosecution had duly proved the charges levelled against all the appellants - accused and the Sessions Court has rightly convicted them for the alleged offences. The present appeal being devoid of merits, deserves to be dismissed and is accordingly dismissed. The judgment and order dated 18.12.2014 of conviction and sentence passed by the Sessions Court in Sessions Case No. 103 of 2014 is hereby confirmed. Record and proceedings be sent back to the court concerned forthwith.