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2020 DIGILAW 145 (GUJ)

State of Gujarat v. Vitthalbhai Chaturbhai Vasava

2020-01-23

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

body2020
JUDGMENT : R. M. Chhaya, J. 1. The present appeal is directed under section 378 of the Code of Criminal Procedure, whereby the State has challenged the order of acquittal passed by the learned Addl. Sessions Judge, Bharuch in Sessions Case No. 118 of 1995 dated 06.08.1996 whereby the learned Sessions Court has acquitted the respondent from the offences punishable under under Sections 302, 504 and 114 of IPC and Section 135 of the Bombay Police Act. 2. The learned APP has informed the Court that the original accused no.1 has expired and the appeal therefore stands abated qua respondent no.1 and hence, this appeal is to be considered only for respondent no.2 Ranjitbhai Chaturbhai Vasava. 3. It is the case of the prosecution that on 17.03.1995, at village Bhuva, Taluka and District Bharuch, when the deceased was sitting with the complainant, who happens to be the wife of the deceased, and other persons beneath the Baniyan tree, at that juncture, both the accused started verbal quarrel with them on the pretext as to why the deceased was not permitting their cattle to drink water. It is further the case of the prosecution that during such oral confrontation, the respondents-original accused started abusing the deceased complainant and as the deceased requested them not to do so, the respondents got enraged and it is alleged that the original accused no.1, respondent no.1, armed with an axe gave blow on the rear part of the forehead of the deceased and respondent no.2 assaulted with bat (cricket bat) and gave a blow on right ear of the parietal region. On the aforesaid allegation, it was alleged that the respondents original accused have committed offence because of which the deceased received serious injuries and succumbed during the treatment at SSG Hospital. 4. On the aforesaid factual matrix, it is alleged that thus the respondents no.1 and 2 have committed offences under Sections 302, 504 and 114 of IPC. The FIR was lodged with Bharuch Rural Police Station by Savitaben, wife of the deceased. The Police investigated the offence and arrested the respondents and ultimately, filed the charge-sheet, Exh.2, before the jurisdictional Magistrate against the accused persons. The FIR was lodged with Bharuch Rural Police Station by Savitaben, wife of the deceased. The Police investigated the offence and arrested the respondents and ultimately, filed the charge-sheet, Exh.2, before the jurisdictional Magistrate against the accused persons. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Cr.P.C. committed the said case to the Court of learned Additional Sessions Judge, Bharuch, which came to be numbered as Sessions Case No.118/95. Since, the accused did not plead guilty and claimed to be tried, they were tried for the charges levelled against them. 5. On perusal of the original record and proceedings, it transpires that the prosecution has relied upon the oral evidence in form of deposition of Savita balubhai, p.w.1, exhibit 7, Sursangbhai Becharbhai Patel, p.w.2, exhibit 8, Arvindkumar Mohanlal Madaliya, p.w.3 exhibit 12, Dashrat Mulji, p.w.4, exhibit 15, Pravinchandra Mohanbhai, p.w.5 exhibit 18, Rameshbhai Dayabhai, p.w.6 exhibit 20, Soma Jesang, p.w.7, exhibit 27, Dilipbhai, p.w.8 exhibit 28, Ajaybhai Dollat, p.w.9, exhibit 29 Bhimsing Soma, p.w.10, exhibit 30, Dr. Minaben Peter, p.w.12, exhibit 32, Rasikbhai Kalubhai, p.w.15, exhibit 37, Dr.Vijaybhai Ranjikant Shah, p.w.16 exhibit 38, Pravinbhai Chandu p.w. 17, exhibit 42 and Nathalal Vallabhbhai, p.w.no.18, exhibit 43 and also relied upon the documentary evidence such as inquest panchnama, panchnama of the scene of occurrence, FSL report in particular. The respondent no.1 original accused gave further statement and also examined Chaturbhai Mohanbhai Vasava, Defence witness No.1, exhibit 47. 6. The learned Sessions Judge considered the deposition of eye witness Savita balubhai, p.w.1, exhibit 7, complainant and Soma Jesang, p.w.7, exhibit 27 who has turned hostile and also considered the medical evidence and the deposition of the Doctor. The learned Sessions Judge after appreciating the evidence on record, has come to the conclusion that the version given by the eye witness creates doubt about the very presence of such witness at the place and time of occurrence. The learned Sessions Judge after appreciating the evidence on record, has come to the conclusion that the version given by the eye witness creates doubt about the very presence of such witness at the place and time of occurrence. After appreciating the evidence on record and finding the material contradiction in the version of two eyewitnesses, one of whom has been declared hostile, the Sessions Court has come to the conclusion that both the eyewitness are chance witnesses and no reliance can be placed on the version of such eyewitness and upon considering the evidence as a whole, the learned Sessions Judge has therefore come to the conclusion that the version of the eye witnesses are not believable and their version cannot be made the sole basis of conviction as it creates doubt and benefit of such doubt is given to the respondents-original accused and have been acquitted for the offences punishable under Sections 302, 504 and 114 of IPC and Section 135 of the Bombay Police Act. Being aggrieved by the same, the State has preferred this appeal under section 378 of the Code of Criminal Procedure. 7. Heard Mr. Hardik Soni, learned APP for the State and Mr.Mrudul Barot, learned advocate for respondent no.2. 8. Mr. Soni, learned APP has taken this Court through the relevant evidence, charge framed at exhibit 2 as well as deposition of Savitaben, p.w.1 at exhibit 7 and oral evidence. Mr. Soni has relied upon the PM notes and the injuries found in the PM Note and have also relied upon the FSL report and has contended that the learned Sessions Court has wrongly appreciated the evidence on record and has committed an error in disbelieving the version of the eyewitnesses. Mr. Soni contended that the presence of eye witness, who is the complainant and who happens to be the wife of the deceased was natural and the same does not create any doubt. It was further contended by Mr. Soni, learned APP that the fact that the cross-complaint was filed be accused no.1 proves the presence of both the accused at the scene of offence. Mr. Soni, learned APP further contended that the prosecution has been able to prove the motive beyond doubt and the Sessions Court has committed an error in not believing the two witnesses who were naturally present at the time of occurrence. Mr. Soni, learned APP further contended that the prosecution has been able to prove the motive beyond doubt and the Sessions Court has committed an error in not believing the two witnesses who were naturally present at the time of occurrence. According to learned APP, the fact that the cross-complaint is filed by the original accused no.1 clearly shows that both the accused were present at the scene of occurrence and the presence of P.W. 1 eye-witness Savitaben is also proved because of the fact that the complaint was filed by the respondent no.1. 9. Referring to the further statement of original respondent no.1, it was contended by Mr. Soni, learned APP that on the contrary, his further statement fortifies the stand of the prosecution that he was present at the time of occurrence of the offence. Mr. Soni further contended that the bat was discovered and the same was sent for FSL report which also bears the blood group of the deceased. The learned APP submitted that the clinching evidence has been discarded by the learned Sessions Court only on the ground that the version of the eye witnesses is not believable, benefit of doubt is given to the respondents. Mr. Soni also contended that only because the two eyewitnesses are relatives of the deceased, it cannot be said that they were chance witnesses. It was also contended by Mr. Soni that there is no improvement or no material contradiction is found in the deposition of eye witnesses and it was contended that the prosecution has been able to prove the guilt of the accused to its hilt. On the aforesaid grounds, it was contended by Mr. Soni, learned APP that the impugned judgment of acquittal deserves to be quashed and set aside and the order of conviction be passed against respondent no.2. 10. Per contra, Mr. Barot, learned advocate appearing for respondent no.2 has supported the impugned judgment and order of acquittal. Mr. Barot, referring to the relevant evidence and more particularly the version of p.w.1 Savitaben, contended that in the medical history, no name of any of the accused was given by the complainant even though the complainant and respondents-original accused were known to each other. Mr. Mr. Barot, referring to the relevant evidence and more particularly the version of p.w.1 Savitaben, contended that in the medical history, no name of any of the accused was given by the complainant even though the complainant and respondents-original accused were known to each other. Mr. Barot also contended that the PM Note at exhibit 40 indicates only one injury whereas in the version of the original complainant, the FIR as well as in her deposition, speaks of two injuries. Mr. Barot contended that there is improvement and material contradiction in the version of the eye witness Savitaben, the complainant. The other eye-witness who has turned hostile and has not supported the case of the prosecution. Mr. Barot also contended that the panch witness has also not supported the case of the prosecution and therefore, the so called discovery/recovery is of no avail and cannot be made basis of conviction. Mr. Barot contended that the cross-complaint on the contrary establishes the fact that the respondents have been wrongly involved in the present offence. Mr. Barot contended that if the version of the cross-complaint is appreciated, the very presence of both the accused is not found. Mr. Barot emphatically based upon the cross-complaint given by the original accused no.1, contended that the same goes to show that the respondent no.2 orig. accused no.2 was not present. Referring to further statement of respondent no.2, it was contended by Mr. Barot that he has categorically explained at the stage of trial that he was not there in the village and had gone out and came back late in the evening because of Dhuleti festival. Mr. Barot contended that the said fact has not been touched by the prosecution. Mr. Barot contended that the learned Sessions Judge has rightly appreciated the evidence on record and has correctly not believed the version of the complainant who has posed herself to be an eyewitness. Referring to the sketch of the scene of occurrence at exhibit 36, Mr. Barot further contended that the scene of occurrence as shown in the said sketch and the water outlet in form of water tank is at the distance of 38 ft. It was also pointed out by Mr. Referring to the sketch of the scene of occurrence at exhibit 36, Mr. Barot further contended that the scene of occurrence as shown in the said sketch and the water outlet in form of water tank is at the distance of 38 ft. It was also pointed out by Mr. Barot that a thick Banyan tree is found between the scene of occurrence and the water tank which clearly eclipse the view from and through the scene of occurrence and the water tank. Relying upon the map at exhibit 36, Mr. Barot contended that if the version of eyewitness Savitaben is examined, it is her version that he was near the water utility to feed the cattle and therefore, the very version that he could view the offence having been committed and more particularly the version of the eyewitness that respondent no.2 inflicted blow on the right ear on parietal region of the forehead with a wooden bat is totally unbelievable. Mr. Barot contended that the eyewitness has been rightly termed by the Sessions Court as chance witness and the prosecution has not examined any independent witness even though in the FIR, the very eyewitness has stated that other persons were also there. Mr. Barot contended that therefore the observations made by the learned Sessions Judge that the eyewitness is a chance witness is on correct appreciation of the evidence. It was contended that the learned Sessions Court has correctly come to the conclusion that the version of the so called eyewitness creates doubt about its veracity and has rightly given benefit of doubt to the respondents. According to Mr. Barot, no other view being possible, the appeal being meritless, deserves to be dismissed. 11. No other or further submissions, contentions or grounds have been raised by the learned advocates appearing for the parties. 12. The complaint is filed by the wife of the deceased who is shown as eyewitness. Upon re-appreciating the contents of the FIR, it clearly bornes out that according to the complainant, she was sitting beneath the banyan tree with her husband, the deceased and other persons. However, it is a matter of fact that the prosecution has not examined any other or independent witnesses. Upon re-appreciating the contents of the FIR, it clearly bornes out that according to the complainant, she was sitting beneath the banyan tree with her husband, the deceased and other persons. However, it is a matter of fact that the prosecution has not examined any other or independent witnesses. Even re-appreciating the version of the original complainant as p.w.1, though she has narrated the whole incident, she has specifically stated in FIR as well as in her deposition before the Sessions Court that the original accused no.1, respondent no.1 inflicted blow on the forehead with an axe and respondent no.2 with a bat. At this juncture, it would be appropriate to refer to the injuries which were found by the Doctor in the PM Note, which is as under “A surgically stitched wound on Rt. Parietal area with showed heir and four stiched taken and dry blood stained face and upper upper part of chest” Comparing the injury shown in column no.17 of the PM Note with the medical papers on record, it appears that as per the medical officer who had the first occasion to examine the deceased, he found the following two injuries- (1) A CLW over occipital region 8cm X ½ cm x scalp. Red with bleeding. (2) Swelling over right parital region and right precarricular region with bleeding from right eye Above injury No. (1) and (2) can be possible by a Hard and Blunt object. Age of injuries was less than twenty four hours. 13. The Doctor has opined that both the injuries can be possible by a hard and blunt object. While comparing the injuries with the version of the eyewitness Savitaben, according to the said eyewitness, the blow was given by original accused no.1 with an axe on the forehead. However, in her deposition, as far as respondent no.2 original accused is concerned, it is not stated as to how and where the so called assault was made by the respondent no.2. Though the learned APP pressed into service the FSL report exhibit 24, however, it deserves to be noted that in the said report, the blood group of either accused no.1 or accused no.2 is not mentioned. Though the learned APP pressed into service the FSL report exhibit 24, however, it deserves to be noted that in the said report, the blood group of either accused no.1 or accused no.2 is not mentioned. Even the blood group of deceased has remained undecided coupled with the fact that the prosecution has also not been able to prove the recovery of cricket bat as the panchas have turned hostile and have not supported the case of the prosecution. The prosecution examined Dr. Arvindkumar Mohanlal Mandaliya as p.w.3, exhibit 12 who had an occasion to first examine the deceased as discussed hereinabove. Upon re-appreciating the deposition of the doctor, the same is in contravention with the version of the eyewitness Savitaben. P.W.4 Dasrath Mulji, panch witness as well as other panch witness Rameshbhai Dayabhai, p.w.6, exhibit 20 have turned hostile and have not supported the case of the prosecution. 14. Considering the cross-complaint relied upon by the learned APP, the same indicates that the incident complained by respondent no.1original accused had occurred at about 12.30 in the noon on the said date. The same shows that on the contrary, the respondent no.1 had already left the place and it is further mentioned that the deceased and complainant went back to his residence. Upon re-appreciation of the evidence in form of FSL report, it deserves to be noted that the prosecution has not considered it appropriate to recover the clothes of the respondents-accused and send it for FSL report. Even if the report is re-appreciated as it is, the same does not take the case of the prosecution any further. The prosecution has also examined Somabhai Jesangbhai, p.w.7, exhibit 27, who has turned hostile and has not supported the case of the prosecution. The other panch witness Dilipbhai @ Deepo Mangu, p.w.8 exhibit 28 and Ajaybhai Dollat, p.w.9 at exhibit 29 have also turned hostile and not supported the case of the prosecution. Bhimsing Soma has been examined the prosecution as P.W.10, exhibit 30. However, upon re-appreciation of the evidence, the only fact which can be culled out is that there was quarrel between respondents and deceased. The role played by either of the respondents is not stated at all. Similarly, the evidence is found in form of deposition of Narpat Rarsinh, p.w. 11, exhibit 31. The evidence of p.w. 12 Dr. Minaben Romoyal Peter, exhibit 32 p.w.13, deposition of Dr. The role played by either of the respondents is not stated at all. Similarly, the evidence is found in form of deposition of Narpat Rarsinh, p.w. 11, exhibit 31. The evidence of p.w. 12 Dr. Minaben Romoyal Peter, exhibit 32 p.w.13, deposition of Dr. Ramanbhai Mathur at exhibit 33, deposition of Patel Yakub Adambhai, p.w. 14 at exhibit 35 and deposition of Dr. Vijaybhai Rajnikant Shah, p.w. 16, exhibit 38, the same does not throw any light on the case of the prosecution indicating any direct involvement of the original accused. The deposition of p.w.17 Pravinbhai Chandubhai is at exhibit 42. He has not supported the case of the prosecution. The deposition of Nathalal Vallabhbhai Kathiriya,p.w. 18 is at exhibit 43. He has only narrated the manner in which the investigation was carried out. Even in his cross-examination, the material contradiction which is otherwise to improve any material contradiction otherwise found in the version of eye witness Savitaben is not explained. As mentioned hereinabove, the Chaturbhai Mohanbhai Vasava, was examined as defence witness no.1 at exhibit 47. He has stated that both the accused are his son. He has stated that last year during Dhuleti, he was in his village. He has stated that he and his son Jagdish were in the lawn of their house. They heard a voice from the front door of the house that Vitthal was beaten. He has further stated that he and his son came to the front door of the house and there were four to five persons standing outside their house. He has stated that they told him that Savita, complainant and the deceased Balu have beaten Vittal, respondent no.1original accused no.1. He has stated that thereafter he and his son Jagdish had gone to village in search of Vitthal but we didn't find Vitthal. At that time deceased Balu came to them and started using filthy language was he was in inebriated condition. He had come with a bat. He has further stated that deceased tried to beat them with the bat but they ran away. The deceased ran behind them and he fell down near the electric post. He has stated that they went back to home but they didnt see the deceased Balu standing up and he was lying on the ground. He has further stated that deceased tried to beat them with the bat but they ran away. The deceased ran behind them and he fell down near the electric post. He has stated that they went back to home but they didnt see the deceased Balu standing up and he was lying on the ground. He has stated that while we were sitting at our house, complainant Savita came shouting that they have killed her husband because of which he and Jagdish and his wife came out to see and complainant Savita went towards lake shouting and we all went towards village out of fear. In the cross-examination, he has stated that his house is situated 100 ft away from the house of the complainant and deceased. He has stated that deceased Balu fell down near the post. He has stated in the cross that he had heard notice outside his house and he did not inquire where Vitthal, accused no.1 is. He has stated that his son Ranjit had ran away towards the village. He has stated that till date he does not know where Vitthal had ran away. He has further stated in his cross that he does not know whether any incident had happened on Dhuleti at eight in the morning. He has further denied in his cross that he has been tutored to give such statement and he is giving false statement. He has further denied in his cross-examination that accused had attacked the deceased and he has seen it and has tried to intervene. He has denied in his cross-examination that his son Jagdish was also with him to intervene. 15. Upon considering the evidence as adduced by the prosecution, the version of the eyewitness Savitaben creates doubt about its veracity. Upon re-appreciating the evidence of p.w.1 Savitaben, her presence also creates doubt. Even if it is believed that the said witness was present at the place of occurrence, considering the sketch, she was at a distance of about 38 ft. and therefore, her version that she actually noticed and watched the deceased being attacked by two assailants one after other, one with the axe and another with cricket bat and the version that such blow landed on the body of the deceased is not believable. and therefore, her version that she actually noticed and watched the deceased being attacked by two assailants one after other, one with the axe and another with cricket bat and the version that such blow landed on the body of the deceased is not believable. As discussed hereinabove, there is contradiction even in the injuries which are mentioned in the certificate issued by the Doctor at Bharuch Hospital where the deceased was examined and the injuries which are found at the time of the Postmortem. The other eyewitness has turned hostile and has not supported the case of prosecution. In totality of the facts, upon re-appreciating of the version put forward by the prosecution in form of eyewitness Savitaben creates doubt about its veracity and the needle of suspicion haunts the version of such witness, which cannot be made basis of conviction. 16. The learned Sessions has committed no error in observing that the eyewitness is a chance witness. The improvement and material contradiction found in the medical evidence, FIR, version of the eyewitness and the medical evidence as well as deposition of the Doctor creates doubt about the veracity of the version given by the eyewitness. The prosecution has not otherwise been able to bring the recovery/discovery of the alleged weapons. Apart from that, the prosecution has thought it fit not to examine any independent witness. 17. Resultantly, the case of the prosecution creates doubt about its veracity, benefit of which should go to the accused and it has been rightly given to the respondent accused. No interference is therefore called for and the order of acquittal recorded by the learned Sessions Court same deserves to be confirmed. The appeal therefore fails and is hereby dismissed. The bail bond stands cancelled.