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2020 DIGILAW 130 (GUJ)

State of Gujarat v. Kantibhai Nanbhai Bhil

2020-01-22

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

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JUDGMENT : R. M. CHHAYA, J. 1. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Sessions Judge, Vadodara in Sessions Case No. 98 of 1995 dated 12.09.1996, the State Government has preferred this appeal under Section 378 of the Code of Criminal Procedure. 2. The prosecution case in nutshell are as under: 2.1. It is alleged that on 21.06.1995 at about 11 midnight while deceased Jethiben wife of Talsibhai Vanjibhai Bhil was sleeping on the bed laid down in the courtyard of her house situated at village Goyavanta, Tal: Nasvadi, Dist. Vadodara. The respondent accused with a belief that the deceased was a Witch and with a belief that she was instrumental in death of his son with an intention to kill decease Jethiben assaulted with an Axe and gave a blow on right ear which is beneath forehead, because of which, the deceased Jethiben expired. On such factual matrix, it was the case of the prosecution that the respondent has committed an offence under Section 302 of the Indian Penal Code r/w Section 135 of the Bombay Police Act. On the aforesaid factual allegation, FIR was lodged by Vajubhai Vanjibhai Bhil before the concerned police station. The Police investigated the said offence and submitted the same before the competent authority and ultimately the same was committed to the Sessions Court and was registered as Sessions Case No.98 of 1995 before the Court of learned Additional Sessions Judge, Surat. The Sessions Court framed the charge at Exh.1 for the offences punishable under Sections 302 of the Indian Penal Code and Sections 135 of the Bombay Police Act. As the respondents did not plead guilty and opted for trial. The prosecution has relied upon the deposition of following 7 witnesses, which reads as under : Name of the witness Exh. No. Dr. Kiritkumar Ramanlal Soni 8 Vajubhai Vanjibhai BhilComplainant 10 Arvindbhai Talsibhai Bhilson of deceased 11 Dholajibhai RamjibhaiPanch witness 12 Himatsinh Manshukhbhai TadviHead Constable 16 Jayprakash Balmukund Tandel PSI 18 Chatrasinh Chandrasinh Vadjiya PSI 19 The prosecution has relied upon the following documentary evidence: Documentary evidence Exh. No. FIR 17 Inquest Panchnama 14 Panchnama of scene of offence 13 Panchnama of recovery of mudamal 15 Postmortem report 09 FSL of Mudamal 20 FSL Report 21 2.2. No. FIR 17 Inquest Panchnama 14 Panchnama of scene of offence 13 Panchnama of recovery of mudamal 15 Postmortem report 09 FSL of Mudamal 20 FSL Report 21 2.2. The learned Sessions Court after appreciating the evidence on record came to the conclusion that the deposition of Vajubhai Bhil – PW No.2 and Arvindbhai Bhil – PW No.3 both being eyewitnesses is not believable and also came to the conclusion that based upon the piece of evidence adduced by the prosecution there is material contradiction even qua injuries sustained by the deceased. It was also observed by the learned Sessions Court that the Axe was found from the scene of occurrence, however FSL report does not in any manner indicate and / or prove that the Axe was weapon used by the respondent. After appreciating the evidence as a whole, Sessions Court came to the conclusion that version of the prosecution and the veracity of the deposition of so called two eyewitnesses creates doubt about its veracity and gave benefit of doubt to the respondent while passing the impugned judgment and order of acquittal. 2.3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Sessions Court, the State has preferred present appeal. 3. Heard Mr. Hardik Soni, learned Additional Public Prosecutor for the State and Mr. Ekant Ahuja, learned advocate for the respondent-original accused. 4. Mr. Soni, learned Additional Public Prosecutor has taken this Court to the deposition of Dr. Kiritkumar Soni who performed postmortem at Exh.8, postmortem note, injuries found from the body of the deceased, deposition of PW No. Vajubhai Bhil at Exh.10 as well as FIR at Exh.17 and deposition of another eye witnesses Arvindbhai Talsibhai at Exh.11 PW. No.3. Mr. Soni contended that reasons assigned by the learned Sessions Court while rejecting and disbelieving the version of two eyewitnesses is an error apparent. Mr. Soni contended that the weapon used by the respondent was found from the scene of occurrence and the prosecution has been able to prove the presence of the respondent at the scene of occurrence beyond any doubt. Mr. Mr. Soni contended that the weapon used by the respondent was found from the scene of occurrence and the prosecution has been able to prove the presence of the respondent at the scene of occurrence beyond any doubt. Mr. Soni, learned Additional Public Prosecutor contended that the reasons given by the learned Sessions Court for disbelieving and/or coming to the conclusion that the version of two eyewitnesses creates doubt about its veracity is based on erroneous appreciation of evidence on record and contended that the impugned judgment and order of acquittal deserves to be quashed and set aside and order of conviction deserves to be recorded. 4.1. Mr. Soni leaned Additional Public Prosecutor referring to the deposition of the Dr. Kiritbhai PW. No.1 at Exh.8, postmortem note and version of two eyewitnesses contended that the learned Sessions Court has wrongly come to the conclusion that in case of contradiction between ocular evidence and the medical evidence, the medical evidence is to be believed. It was also contended that the learned Sessions Court has not properly appreciated the evidence of PW No.2 Vajubhai Bhil and PW No.3 Arvindbhai Bhil. According to Mr. Soni, the presence of PW No.3 being son and PW.No.2 being brother of the husband of the deceased is but natural and the learned Sessions Court has not properly appreciated such clinching evidence on record. It was also contended that even though there is ample direct and indirect evidence to connect accused with the crime, the learned Sessions Judge has wrongly come to the conclusion that same creates doubt and has wrongly given benefit of doubt to the respondent accused while passing the impugned judgment and order of acquittal. On the aforesaid ground, it was contended by Mr. Soni that appeal deserves to be allowed as prayed for and appropriate order of conviction and sentence be imposed upon the respondent. 5. Per contra, Mr. Ekant Ahuja, learned advocate for the respondent-accused has supported the impugned judgment and order of acquittal. Mr. Ahuja contended that the presence of so called two eyewitnesses being PW No.2 Vajubhai Bhil and PW.No.3 Arvindbhai Bhil is not proved beyond doubt by the prosecution. Mr. Ahuja referring to the deposition as a whole as well as panchnama of the scene of occurrence contended that the prosecution witnesses have attempted to even change the scene of occurrence. Mr. Ahuja contended that the presence of so called two eyewitnesses being PW No.2 Vajubhai Bhil and PW.No.3 Arvindbhai Bhil is not proved beyond doubt by the prosecution. Mr. Ahuja referring to the deposition as a whole as well as panchnama of the scene of occurrence contended that the prosecution witnesses have attempted to even change the scene of occurrence. It was submitted that there is material contradiction in the version of the complainant in the FIR and in the deposition. Mr. Ahuja also contended that even though facility of phone and car was available in the village and even though it comes in evidence that the head of the village i.e. Sarpanch and Police Patel reached the scene of occurrence immediate after the incident, the complainant and other two persons who are named in the FIR has having accompanied the complainant to the police station walks for two hours and 10 km to reach the police station. It was submitted by Mr. Ahuja that such version of the original complainant is wholly not believable. Mr. Ahuja also pointed out that there are material contradiction in the version of two eyewitnesses and the same has been rightly appreciated by the learned Sessions Court and has not been given any credential. Mr. Ahuja contended that in the inquest panchnama, FIR as well as in the deposition of two eyewitnesses the injuries is mentioned on the right ear whereas as per the postmortem note, the only injuries which is found on the body of the deceased was on the left ear. It was thus there is material contradiction even as per the alleged injuries upon the body of the deceased. Mr. Ahuja referring to the FSL report submitted that same does not prove any link to the prosecution so as to hold the respondent guilty of the offence as alleged. Mr. Ahuja contended that the learned Sessions Judge has rightly appreciated the evidence on record and has correctly recorded the order of acquittal, which does not require any alteration. Mr. Ahuja has contended that the learned Sessions Judge has committed no error in giving benefit of doubt to the respondent. It was contended that appeal being merit less, deserves to be dismissed. 6. No other and further submissions, grounds and contentions have been raised by the learned advocates for the respective parties. 7. Mr. Ahuja has contended that the learned Sessions Judge has committed no error in giving benefit of doubt to the respondent. It was contended that appeal being merit less, deserves to be dismissed. 6. No other and further submissions, grounds and contentions have been raised by the learned advocates for the respective parties. 7. Having considered the submissions made by the learned advocates for the respective parties and on perusal of the Record and Proceedings of the case, it deserves to be noted that incident even as per the FIR occurred at 24 hours. The FIR indicates that the distance between village Goyavanta, Tal: Nasvadi, Dist. Vadodara and police station was 11 km and same indicates that the FIR was lodged at 7.05 hours on the next day I..e. 22.06.1995, which was registered by Vajubhai V Bhil – PW.No.2 brother-in-law of deceased. In FIR original complainant – PW No.2 states that he was awake because of the sound in the adjoining bed wherein he found that deceased Jethiben was assaulted by the respondent with an Axe and gave one blow on the forehead and thereafter he ran away. He has categorically stated that when he looked at the deceased he found injuries on the side of the right ear. He has stated that thereafter he called Police Patel of village Chandubhai Rathava and Vechanbhai Nathabhai Rathava etc. He has also stated that the respondent ran away after assault on the forehead near right ear. Even the motive of assault as narrated in the FIR is to the effect that deceased was Witch and that she was instrumental in death of son of the respondent. It also deserves to be noted that as per the FIR itself it clearly borne out that the same is registered after about 8 hours. The evidence clearly shows – more particularly, version of the complainant as well as other eyewitnesses i.e. son of deceased – Arvindbhai clearly shows that the Police Patel and Sarpanch was present. The deposition of the Arvindbhai Bhil – PW No.3 as well as deposition of complainant PW.No.2 Vajubhai Bhil indicates that they went to the police station on foot at about 7.00 clock on the next date and went to village Goyavanta with Chandubhai Rathava and Vechanbhai Nathabhai Rathava, however the prosecution has not examined Chandubhai Rathava and Vechanbhai Nathabhai Rathava, though they were independent witness. Upon re-appreciating the evidence of PW Nos.2 and 3, both the witnesses have stated that they were sleeping on the bed placed in the courtyard whereas in the FIR it is mentioned that they were sleeping outside the house and PW No.3 were sleeping on the Otta I.e Varanda and deceased and the complainant were sleeping on the bed laid down near the Otta. The aforesaid contradictions in fact changes the scene of occurrence. However, considering the FSL report though it appears blood group “O” was found on the weapon, the prosecution has not been able to prove the fact that the blood group of deceased was also “O”. It also deserves to be noted that the prosecution has not examined the blood group of the respondent accused and upon re-appreciation of such piece of evidence, the same does not lead to any link of the accused with the crime. It has also come in the evidence of two eyewitnesses after the incident the police Patel and Sarpanch gathered at the scene of occurrence. It is also admitted in the cross examination by the eyewitnesses that there are scooter, motorcycle and tractors in the village however Arvindbhai Bhil and Vajubhai Bhil prefer to walk down 10 km to lodge the FIR. Such conduct also creates doubt. In addition to the same, the injury as per the deposition of PW. No.1 Dr. Kiritkumar Soni, who performed postmortem upon the dead body, has recorded that injury was on the left ear and even the shape of blade of Axe removed from the wound during the postmortem, ridges were also found over the left ear whereas inquest panchnama as well as in the version of two eyewitnesses injury is assigned to have been caused on the right ear. The prosecution has not examined any other independent witnesses and the deposition of the IO-Chatra sinh Vadjiya at Exh.19 also does not take the case of the prosecution any further. The conduct of the complainant and the other eyewitnesses i.e. Arvindbhai – PW No.3 creates doubt about the veracity of the version which is not corroborated by any other piece of evidence. Upon re-appreciation of evidence as a whole, the whole case of the prosecution is based on the version of two eyewitnesses, which creates doubt about its veracity and thus, the learned Sessions Court has committed no error in not believing their version. Upon re-appreciation of evidence as a whole, the whole case of the prosecution is based on the version of two eyewitnesses, which creates doubt about its veracity and thus, the learned Sessions Court has committed no error in not believing their version. Upon re-appreciation of the evidence, this Court finds that the version creates doubt about its veracity and same cannot be made base for conviction for an offence under Section 302 of the Indian Penal Code. Upon re-appreciation of the evidence as a whole, this Court finds that the Sessions Court has rightly come to the conclusion that evidence of the two eyewitnesses is not believable and contradiction of the place of occurrence as well as injuries pointed out, needle of suspicious about the version put forward by the two eyewitnesses and this Court finds that ring of truth is not found in the version of two eyewitnesses and it creates doubt about its veracity, benefit of which should go to the respondent accused. 8. In view of the above and for the reasons stated above, appeal fails and is hereby dismissed and judgment and order of acquittal deserves to be confirmed. As the appeal is dismissed, bail bond stands cancelled. Record and proceedings be sent back to the learned Sessions Court forthwith.