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2020 DIGILAW 155 (GUJ)

State of Gujarat v. Manchhabhai Lalabhai Majirana

2020-01-24

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

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JUDGMENT : R.M.Chhaya, J. 1. This appeal is directed by the appellant – State of Gujarat against the judgment and order of acquittal dated 26.11.1996 passed by learned Sessions Judge, Banaskantha at Palanpur, in Sessions Case No.55/1996 under Section 378 of the Code of Criminal Procedure (hereinafter referred to as the “Code” for short), whereby the learned trial Court acquitted the respondents from the offence under Sections 302, 201, 323 and 34 of the Indian Penal Code, 1860. 2. The following noteworthy facts emerge from the record of the appeal : 2.1 While the deceased Dineshbhai Ishwarbhai Majirana went to the house of original accused No.1 on 25.01.1996 at about 10:00 P.M, situated at Bhopanagar, Deesa, Banaskantha, respondent No.1 viz. Manchhabhai Lalabhai Majirana armed with stick and assaulted stick blows upon the deceased and accused No.3 viz. Rameshbhai Lalabhai Majirana assaulted Khilasari upon the face of the deceased. It is also alleged that, original accused No.2 viz. Laxmiben wife of Lalabhai Majirana was present along with accused Nos.1 and 3 and they had assaulted upon the deceased Dinesh with an intention to kill him. Thereafter, the accused threw the dead body of the deceased in Banas river and tried to destroy the evidence. It is also alleged that, accused No.1 also inflicted stick blow on the backside of the complainant, who was wife of accused No.1. On the aforesaid factual matrix, it is alleged that, the respondents – accused have committed the offence punishable under Sections 302, 323, 201 and 34 of Indian Penal Code and Section 135 of the Bombay Police Act. 2.2 Pursuant to the said incident, FIR was lodged by the complainant – Kamalaben Manchhabhai Majirana, who was wife of accused No.1, before Deesa City Police Station, Dist. Banaskantha. Pursuant to the same, investigation was carried out by the police, accused were arrested and ultimately, the chargesheet came to be filed 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 Sessions Judge, Banaskantha at Palanpur, which came to be numbered as Sessions Case No.55/1996. Since, the accused did not plead guilty and claimed to be tried, they were tried for the offences; 2.3 The prosecution relied upon the oral evidence of the complainant, who has been shown as eyewitness. Since, the accused did not plead guilty and claimed to be tried, they were tried for the offences; 2.3 The prosecution relied upon the oral evidence of the complainant, who has been shown as eyewitness. The prosecution has also relied upon the oral testimony of PW: 4 Ishwarji Dharmaji at Exh: 30, who was shown as eyewitness. Prosecution also examined PW: 3 – Santramji Dayaramji Majirana at Exh: 29 (eyewitness), who has not supported the case of the prosecution and declared turned hostile. Over and above that, the prosecution has also relied upon the evidence of PW:7 Lavjibhai Kanabhai Pranami, who was Investigating Officer. 2.4 At the trial, in order to bring home the charges levelled against the accused, the prosecution examined several witnesses and relied upon the several documentary evidence such as P.M. Note at Exh:10, Cause of death certificate at Exh:11, Inquest Panchnama at Exh:21, Scene of offence panchnama at Exh:23, panchnama of cloth of dead body at Exh:24, Panchnama of recovery of weapon at Exh:32 and 33 and FSL report at Exh:43. 2.5 At the end of the trial, after recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 and upon hearing the arguments on behalf of the prosecution and the defence, learned trial Court has come to the conclusion that the presence of PW:2 Kamalaben Majirana (complainant) on the scene of offence creates doubt and has, therefore, disbelieved the version of the complainant as well as the fact that she was an eyewitness and even considering the deposition of PW:4 Ishwarji Dharmaji as well as the fact that the prosecution has not been able to prove the discovery of weapon, has come to the conclusion that the prosecution has failed to prove the guilt and held that the version of the complainant crates doubt about its veracity and has, therefore, acquitted the respondents – original accused from the offence under Sections 302, 323, 201 and 34 of Indian Penal Code and Section 135 of the Bombay Police Act, vide impugned judgment and order of acquittal dated 26.11.1996 in Sessions Case No.55/1996, as mentioned above; 2.6 Being aggrieved by the same, the appellant–State preferred present appeal under Section 378 of the Code of Criminal Procedure against all three accused. 3. Heard Mr.Hardik Soni, learned Additional Public Prosecutor and Mr.Umang H. Oza, learned counsel for the respondents-accused. 4. 3. Heard Mr.Hardik Soni, learned Additional Public Prosecutor and Mr.Umang H. Oza, learned counsel for the respondents-accused. 4. Learned APP has taken this Court through the deposition of main three witnesses i.e. PW:2, PW:3 and PW:4 as well as FSL report at Exhs:42 to 44 and has contended that the learned trial Court has wrongly disbelieved the version of eyewitness. He further contended that there are no material contradiction in the version of the complainant. There is no such circumstance, which crates any doubt about the veracity of version of the complainant, who was an eyewitness. According to Mr. Soni, learned trial Court has therefore committed an error in appreciating the evidence of the eyewitness. Connecting the version of the eyewitness with F.S.L report at Exhs:42 to 44, he contended that the weapon i.e. knife bears the bloodstains of group AB, which was the blood group of deceased. The prosecution has been able to establish the link and relied upon the version of the complainant, who was eyewitness. He further contended that the prosecution has been able to prove the guilt against the accused. Referring to and relying upon the deposition of PW:4 Ishwarji Dharmaji, who happens to be father of the deceased, contended that the said witness has categorically stated that PW:2 (eyewitness) informed him that, as to how the incident has occurred and how the deceased was assaulted by accused Nos.1 and 3. He also contended that there are no contradiction much less any material contradiction, which crates any doubt about veracity of the version of PW: 4 itself. Referring to the deposition of PW: 7 viz. Lavjibhai Kanabhai Pranami (Investigating Officer), who was examined at Exh: 37, it was contended that recovery of weapon used in the commission of offence at the instance of respondent No.1 is proved beyond doubt and version of PW:4 viz. Ishwarji Dharmaji as well as PW:2 (complainant) are corroborated by the evidence of the investigating officer and therefore, there is no question of any contradiction in the version of eyewitness as well as PW:4 (father of the deceased). On the abovementioned grounds, learned APP submitted that learned trial Court has not properly appreciated the evidence on record and has wrongly recorded the judgment and order of acquittal, which deserves to be interfered with and reversed by passing appropriate order of conviction by this Court. 5. As against this, Mr. On the abovementioned grounds, learned APP submitted that learned trial Court has not properly appreciated the evidence on record and has wrongly recorded the judgment and order of acquittal, which deserves to be interfered with and reversed by passing appropriate order of conviction by this Court. 5. As against this, Mr. Umang H. Oza, learned counsel for the respondents – accused has supported the impugned judgment and order of acquittal. Referring to the deposition of PW: 2 Kamalaben Majirana (complainant), he contended that in her cross-examination, she has categorically admitted the fact that she has not come out from the house and was sleeping in the house till the next morning. Having admitted such fact, version of the complainant that she was present at the cross roads where the alleged incident has taken place, is totally unbelievable. He further contended that even the version of said eyewitness that she was assaulted by respondent No.1 on her backside shoulder with stick is not believable and she has categorically admitted that in the houses of Bhil community, door is as such that it has wooden planks and that she fell down while crossing the same. Referring to M.L.C certificate of PW: 2 (complainant), it was contended that even the Doctor has opined that such injury can be caused with hard and blunt substance and from her admission in the cross-examination that she fell down, clearly shows the version that she was assaulted with stick by accused No.1 is a concocted story. PW: 3 Santramji Dayaramji Majirana, who has been paused as eyewitness is on the contrary brought out the truth before the trial Court and has rightly not supported the case of the prosecution. He contended that no independent witness has been examined and the version of PW: 4 – Ishwarji Dharmaji (father of deceased) also does not prove the guilt of the respondents in any manner. He also contended that when the version of PW: 2 (complainant) so called eye witness itself is doubtful and her presence is also doubtful. The hearsay statement made by PW: 4 Ishwarji Dharmaji is rightly not believed by the learned trial Court. He also contended that when the version of PW: 2 (complainant) so called eye witness itself is doubtful and her presence is also doubtful. The hearsay statement made by PW: 4 Ishwarji Dharmaji is rightly not believed by the learned trial Court. He also contended that the panchwitness of recovery panchnama has been declared as turned hostile and has not supported the case of the prosecution and therefore, no credential can be given without recovery of weapon (knife) and therefore, F.S.L report is not linked, which connects the respondents with the alleged offence. Referring to the observations made by learned trial Court and referring to the deposition of PW:2Kamalaben Majirana (complainant) as well as PW:4Ishwarji Dharmaji, Mr. Oza contended that learned trial Court has rightly appreciated the evidence on record and has correctly come to the conclusion that the same creates doubt of benefit, which is rightly given to the respondents. He also contended that upon correct appreciation of the evidence on record, learned trial Court has correctly come to the conclusion that the version of the prosecution creates doubt on the occurrence of the incident and benefit of the same has rightly given to the respondents and therefore, no interference is called for and the appeal being meritless, deserves to be dismissed. No other or further submissions have been made by learned counsel for the parties. 6. Having heard learned counsel appearing for the parties and having perusal of the record and proceedings as well as the paper-book, it appears that the whole case of the prosecution is based upon the following piece of evidence: (I) Evidence of PW:2 - Kamalaben Majirana (complainant) (II) Evidence of PW: 3 – Santramji Dayaramji Majirana and PW: 4 – Ishwarji Dharmaji (III) Evidence of PW: 1 – Dr.Punmaji Hakmaji Bhati (IV) FSL report at Exhs : 42 to 44 7. Before referring to the deposition of PW: 2, it would be appropriate to refer to the F.I.R lodged by the complainant, who was examined at Exh: 28. The complainant has narrated that, on 25.01.1996, her father-in-law viz. Lalabhai and mother-in-law viz. Laxmiben W/o. Lalabhai came to village Mahadeviya and parents of the complainant sent her with mother-in-law by rickshaw to Deesa and father-in-law stayed at her maternal house. The complainant has narrated that, on 25.01.1996, her father-in-law viz. Lalabhai and mother-in-law viz. Laxmiben W/o. Lalabhai came to village Mahadeviya and parents of the complainant sent her with mother-in-law by rickshaw to Deesa and father-in-law stayed at her maternal house. It is also stated that, she reached Bhopanagar at about 6:00 p.m. from village Mahadeviya and when she reached Bhopanagar, her husband (accused No.1) and her brother-in-law viz. Ramesh (accused No.3) were present and at about 10:00 p.m, her brother – Dineshbhai came to Bhopanagar and inquired from her as to why she has come to Bhopanagar and told to come back with him. It is further stated that, her husband as well as her brother-in-law told her not to leave and because of which, there were verbal altercations between her husband and brother. It is further stated that, thereafter, at four cross roads situated opposite her house, her brother-in-law Ramesh assaulted on the forehead of her brother Dinesh with Khilasari and her husband assaulted with stick. She has further stated that she has tried to intervene in the said scuffle, but her husband gave stick blow on the backside of her shoulder and therefore, she frightened and went back to her house, wherein, her sister-in-law Hansa was present. Thereafter, her brother-in-law Ramesh brought rickshaw and her brother was further assaulted. It is further stated by her in the complaint that, thereafter all the accused took her brother in a rickshaw and at about 1'o clock in the night, all the accused came back and told that we wanted to kill him and thereafter, as she was frightened, she went inside the house and slept. It is further stated that, on the next morning, her brother Ashok came and informed that her brother Dinesh has expired and his dead body is lying near T.V. Petroleum and thereafter, she accompanied her brother Ashok to the said place and found that her brother had sustained injuries over his joe and leg. The prosecution has heavily relied upon the version of PW:2 and she has been examined at Exh:28. Though in her examination-in-chief, she has narrated the incident, in her cross-examination, she has admitted the fact that after 8 p.m, there is always darkness. She has also stated that pakka road is at a distance of 1 k.m. from the house where lights are there. Though in her examination-in-chief, she has narrated the incident, in her cross-examination, she has admitted the fact that after 8 p.m, there is always darkness. She has also stated that pakka road is at a distance of 1 k.m. from the house where lights are there. She has admitted in her cross-examination that, if one stands up in her house, does not possible to see through it as there is a boundary of thors. However, in her cross-examination, she has stated that she alongwith accused No.1 were sleeping in the house. She has also stated that, the deceased was agreeable to send her to in-laws place. However, in her cross-examination, she has stated that she was sleeping in the house and did not come out till the next morning. She has also stated in her cross-examination that, houses of Bhil community are of lower level and have wooden boundary and the injury which she has sustained on her backside is because of fallout. The prosecution has also examined PW: 3 Santramji Dayaramji Majirana as an eyewitness, who has not supported the case of the prosecution at all. The prosecution has also relied upon the deposition of PW: 4 Ishwarji Dharmaji at Exh: 30, who happens to be father of the deceased as well as the original complainant. In his cross-examination, he has stated that there is no such custom in their community that if sister goes to her matrimonial house, brother would go and stay overnight. 8. It is also noteworthy that in his cross-examination, he has stated that the dead body was found on the national highway, whereupon there is movement of vehicles 24 hours. Other witness examined by the prosecution being PW: 5 viz. Sevantilal Kacharaji, who was examined at Exh:31 has turned hostile and has not supported the case of the prosecution. The prosecution has thereafter relied upon the deposition of PW: 6 viz. Ashokbhai Mulchandbhai, who was examined at Exh: 36, who was also panchwitness, however, he has not supported the case of the prosecution. PW: 7 viz. Lavjibhai Kanabhai Pranami, who was examined at Exh:37 (investigating officer), who has deposed the manner in which the investigation was carried out by him. However, the same does not throw any light over the case and does not establish any further link with the alleged offence. PW: 7 viz. Lavjibhai Kanabhai Pranami, who was examined at Exh:37 (investigating officer), who has deposed the manner in which the investigation was carried out by him. However, the same does not throw any light over the case and does not establish any further link with the alleged offence. It is further noteworthy that PW: 2 (complainant) in her deposition stated that when she reached the place when the dead body of Dinesh was found, her father was already there and the police has recorded the statement. It is also noteworthy that, the trial Court has succinctly appreciated the evidence on record and has rightly appreciated the evidence. The observations made by the learned trial Court in paras 10 and 11 are appropriate appreciation of the evidence on record and we are in total agreement with the same. The contradictions which are found in the version of PW: 2 are material in nature. On one hand, she stated that she had seen the incident and on the other hand, she went inside the house and did not come out during the night and said version therefore creates doubt to the veracity of deposition of the complainant as she is only an eyewitness, who has supported the case of the prosecution. Even examining the contentions raised by learned APP as regards the bloodstains of AB group found on the weapon (knife), the fact remains that recovery has not been proved by the prosecution and therefore, the same cannot be made the sole basis of conviction or it cannot be said that the prosecution has been able to establish a link with the alleged guilt. The learned trial Court upon appreciation of the evidence on record has also referred to the panchnama of scene of occurrence, which does not show any bloodstains. Upon re-appreciation of the evidence on record, we find that reliance upon the version of PW: 2 Kamalaben Majirana and PW: 4 Ishwarji Dharmaji at Exh: 30 creates doubt about the version of PW: 2 so called eyewitness. Even presence of PW: 3 Santramji Dayaramji Majirana is not mentioned in the FIR. Even the version that, all three accused took the deceased in rickshaw is also corroborated. No rickshaw is ever recovered or no any driver or owner of rickshaw was examined by the prosecution. Even presence of PW: 3 Santramji Dayaramji Majirana is not mentioned in the FIR. Even the version that, all three accused took the deceased in rickshaw is also corroborated. No rickshaw is ever recovered or no any driver or owner of rickshaw was examined by the prosecution. Even the manner in which the respondents have assaulted upon the deceased is not even mentioned and there is no clear attribution of the same. 9. In totality of the facts, we find that the ring of truth is absent in the version of the complainant, who has paused to be an eyewitness and considering the evidence as a whole, the same creates doubt about its veracity as rightly observed by the learned Trial Court. Therefore, the learned trial Court has rightly recorded the judgment and order of acquittal and has not committed any error and therefore, no interference is required by this Court. 10. For the foregoing reasons and observations, present appeal fails and is hereby dismissed. The impugned judgment and order of acquittal dated 26.11.1996 passed by learned Sessions Judge, Banaskantha at Palanpur, in Sessions Case No.55/1996 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the trial Court forthwith.