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2020 DIGILAW 115 (GUJ)

State Of Gujarat v. Bhikhabhai Balubhai Baria

2020-01-21

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

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JUDGMENT : Vireshkumar b. Mayani, J. 1. The appellant – State has challenged the impugned judgment and order dated 25.4.1996 passed in Sessions Case No.209 of 1994 by the learned Additional Sessions Judge, Vadodara, acquitting all the accused (respondents herein) from the charges levelled against them under Sections 302, 34 and 504 of the Indian Penal Code. 2. It is the case of the prosecution that there was some dispute between deceased Rasulkha Ijjatkha Pathan and original accused No.1 Bhikhabhai Balubhai Bariya for the land bearing Survey No.276 and, therefore, deceased Rasulkha Pathan was harassing accused No.1 by making several applications and also threatened the accused No.1. Due to the dispute, on 19.1.1994 when the deceased Rasulkha Pathan engaged labourer to pick up the cotton from the land bearing Survey No.276 at Village : Vajiriya, Taluka : Tilakvada, Dist. Vadodara, the fact regarding this picking up cotton came to the knowledge of the original accused Bhikhabhai Balubhai, Maganbhai Somabhai, Sanabhai Nathabhai and Vinod @ Fulabhai. They went to the place of offence at about 10:00 a.m. and at that time the accused No.1 and 2 inflicted blow of stick upon the deceased Rasulkha Pathan intentionally and thereby Rasulkha Pathan died, whereas original accused Nos.3 and 4 abused Rasulkha Pathan and also abetted the offence. In this regard, Husenkha Mehbubkha Pathan lodged complain in the Tilakvada Police Station before PSI R. L. Rathva and the offence was registered. Thereafter Shri Rathva investigated the offence, arrested the accused, muddamal weapons had been recovered from the accused and thereafter there was sufficient evidence, hence placed the charge-sheet before the Judicial Magistrate First Class. 3. As the offence was under Section 302 etc., of the Indian Penal Code and, therefore, the Sessions Court had exclusive jurisdiction to try the case and, therefore, the Judicial Magistrate First Class committed the case under Section 209 of the Criminal Procedure Code to the Sessions Court. Thereafter the Sessions Court framed the charge under Sections 302, 34 and 504 of the Indian Penal Code against all the four accused on 6.2.1996 at Ex.6 and the accused denied the charges against them and prayed for trial and, therefore, the trial began. 4. During the course of trial, the prosecution examined the following witnesses : Sr. No. Name P.W. No. Exh. 1 Complainant – Husenkha Mehbubkha Pathan 1 12 2 Dr. 4. During the course of trial, the prosecution examined the following witnesses : Sr. No. Name P.W. No. Exh. 1 Complainant – Husenkha Mehbubkha Pathan 1 12 2 Dr. Swaraj Baldevkishan Binju 2 14 3 Jahgir Samir Shaikh 3 16 4 Ismail Mahmedkha Somra 5 24 5 Rangalsinh Limjibhai Rathva –PSI, Tilakvada Police Station 6 25 5. The prosecution also led documentary evidence in support of its case : Sr. No. Name of Evidence Exh. 1 Original Complaint 13 2 Inquest panchnama. 27 3 Site inspection where the dead body was lying. 28 4 Panchnama of scene of offence. 30 5 Panchnama of clothes recovered from the dead body. 31 6 Copy of Ravangi Nondh. 32 7 Original Receipt of FSL for receiving of muddamal. 33 8 Panchnama of recovery of stick from accused Bhikhabhai. 46 6. After recording of the evidence and hearing as well as appreciating the evidence of both the parties the Sessions Court acquitted all the four accused from the charges under Sections 302, 34 and 504 of the Indian Penal Code levelled against them. Being aggrieved and dissatisfied by the same, the present appellant – State preferred the present appeal. 7. The learned Appellant Mr. Hardik Soni for the appellant State mainly submitted that the impugned judgment acquitting all the four accused passed by the learned Sessions Judge is contrary to law and evidence on record and, therefore, the order of acquittal is required to be quashed and set aside and the original accused be convicted for the above mentioned offences under Sections 302, 34 and 504 of the Indian Penal Code. He further submitted that the original accused Nos.1 and 2 had given stick blow to the deceased Rasulkha Ijjatkha Pathan whereas the original accused Nos.3 and 4 abused the deceased Rasulkha Ijjatkha Pathan and abetted the offence. He also submitted that there are eyewitnesses but the learned Sessions Judge did not believe them and the learned Sessions Judge failed to appreciate the evidence of eyewitnesses in a proper perspective and manner. The medical evidence also supports the case of the prosecution and at last he submitted to allow the present appeal and convict the respondents herein who are original accused. 8. Mr. B. S. Patel, learned Senior Advocate appearing with Mrs. The medical evidence also supports the case of the prosecution and at last he submitted to allow the present appeal and convict the respondents herein who are original accused. 8. Mr. B. S. Patel, learned Senior Advocate appearing with Mrs. Ranjan B. Patel, learned advocate for the respondents herein submitted that the accused were innocent and they were wrongly involved in the heinous crime of murder. He submitted that the deposition of the eyewitnesses are contrary to each other. Moreover, the so called eyewitnesses cannot be believed and their presence at the time of incident and at the place of incident is not possible and, therefore, the learned Sessions Court has rightly acquitted the original accused – respondents herein and, therefore, it is not required to quash and set aside the order of acquittal and, therefore, the appeal may be dismissed. 9. No other or further submissions have been made by the learned advocates for the respective parties. 10. Now looking to the impugned judgment, the first issue is regarding whether the death of Rasulkha Ijjatkha Pathan was culpable homicide or not. The Sessions Court appreciated the evidence on record, particularly the evidence of Dr. Swaraj Baldevkishan Binju, Medical Officer at Ex.14 who had performed the postmortem. The P.M. note as well as the deposition of doctor describe six different injuries upon the dead body of deceased Rasulkha Pathan. Doctor opined that the deceased Rasulkha Pathan died due to hemorrhage and shock due to the injury upon the chest and lungs which can be possible through hard and blunt substance and also opined that due to the blow of muddamal stick the injuries which are found upon the body of the deceased can be possible. Therefore, considering the evidence of the doctor who performed the postmortem, the postmortem note, the inquest panchnama etc., the Sessions Court rightly came to the conclusion that death of deceased Rasulkha Pathan is a culpable homicide. 11. It will not be enough to decide only the death as to culpable homicide but it is required that the accused are responsible for the death of deceased Rasulkha Pathan and there should be a link between the death of deceased Rasulkha Pathan and the act of original accused. There should be an evidence that tie the original accused with the offence which can lead that no one but only the accused had killed deceased Rasulkha Pathan. 12. There should be an evidence that tie the original accused with the offence which can lead that no one but only the accused had killed deceased Rasulkha Pathan. 12. As per the case of prosecution there were three eyewitnesses who were P.W. No.1 at Ex.12 – Husenkha Mehbubkha Pathan, grandson of deceased Rasulkha Ijjatkha Pathan, who is also the first informant. P.W. No. 3 at Ex.16–Jahgir Samir Shaikh, P.W.No.5 at Ex.24 Ismail Mahmed Somra. 13. The complainant Husenkha Mehbubkha Pathan who is examined vide Ex.12 has mainly deposed before the trial Court that at the time of incident accused Bhikhabhai Balubhai inflicted blow of stick upon deceased whereas the accused Sanabhai Nathabhai and Maganbhai Somabhai inflicted blow of stick upon the stomach of deceased Rasulkha Pathan and thereby killed Rasulkha Pathan. At the same time, the complaint, FIR Ex.13 describe that the accused Bhikhabhai Balubhai inflicted blow on the head whereas Maganbhai Somabhai inflicted blow of stick upon the stomach of the deceased. Therefore, there is contradiction regarding which accused had inflicted blow upon which part of the body of the deceased Rasulkha Pathan. Not only that but as per the witness, other two accused Sanabhai Nathabhai and Maganbhai Somabhai inflicted blow on stomach, but such facts are not mentioned in the FIR and, therefore, there is discrepancy in the fact of FIR and the deposition of the complainant. Moreover, as per this witness Husenkha Mehbubkha Pathan who is grandson of deceased Rasulkha Pathan, he was nearby the deceased when the incident had taken place and he is the eyewitness, but at the same time when his grandfather was beaten he had not tried to save his grandfather. Moreover, as per his case he went from his house with cattle for grazing the cattle. As per the evidence on record when he went from his house then first of all the Narmada Vasahat was situated and then after place of cattle grazing was situated and then after three fields left and then after the place of incident was situated. He had deposed that he went for grazing his cattle so naturally he will stop at the place of grazing the cattle. He had no reason to go to the place of offence which is situated after three fields left. Therefore, there is reasonable doubt regarding his presence at the time of offence. 14. He had deposed that he went for grazing his cattle so naturally he will stop at the place of grazing the cattle. He had no reason to go to the place of offence which is situated after three fields left. Therefore, there is reasonable doubt regarding his presence at the time of offence. 14. Another eyewitness Jahgir Samir Shaikh was examined vide Ex.16, in which he mainly deposed that all the four accused were having stick in their hands and they were beating Rasulkha and when he reached there all the four accused fled away. Moreover, he deposed that two accused were beating Rasulkha with stick whereas two accused were jumping on the stomach of the deceased Rasulkha Pathan. He has not deposed that which accused had beaten with stick and which accused had jumped upon the stomach of the deceased Rasulkha Pathan. Beside this, on one hand he deposed that all the four accused had beaten the deceased Rasulkha Pathan with stick and on the other hand he has deposed that two accused were beating with stick and two accused jumped upon the stomach of deceased Rasulkha Pathan. 15. Another witness Ismail Mahmedkha Somra deposed vide Ex.24, in which he mainly deposed that he went to the place of offence as he heard shouting of the complainant. It means that present witness reached at the place of offence after committal of the offence, because the complainant Husenkha Mehbubkha Pathan deposed that due to the injury his grandfather fell down upon the land and afterwards he shouted and, therefore, the accused fled away and due to his shouting the witness Jahgir Shaikh and witness Ismail Somra came to the place of offence. Therefore, as per the deposition of the Husenkha Mehbubkha Pathan who is grandson of deceased Rasulkha Pathan two eyewitnesses came after his shouting, after his grandfather fell down on the land and accused fled away. Therefore, as per the deposition of the Husenkha Mehbubkha Pathan who is the complainant the other two eyewitnesses are not the real eyewitnesses but they came after the incident had taken place and accused fled away. 16. In view of the above facts the above mentioned three eyewitnesses' deposition do not inspire confidence and it is not trustworthy. Therefore, as per the deposition of the Husenkha Mehbubkha Pathan who is the complainant the other two eyewitnesses are not the real eyewitnesses but they came after the incident had taken place and accused fled away. 16. In view of the above facts the above mentioned three eyewitnesses' deposition do not inspire confidence and it is not trustworthy. The learned Sessions Court has rightly appreciated the oral as well as documentary evidence in a proper perspective and right manner and there is no any error in coming to the conclusion regarding acquittal of the four accused – respondents herein. Therefore, there is no substance in the present appeal and it is meritless. Hence the appeal deserves to be dismissed. It is dismissed accordingly. The impugned judgment and order dated 25.4.1996 passed in Sessions Case No.209 of 1994 by the learned Additional Sessions Judge, Vadodara, acquitting all the accused is upheld and confirmed. R & P shall be sent back forthwith.