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2020 DIGILAW 174 (GUJ)

State Of Gujarat v. Prakashbhai Okhabhai Mochi

2020-01-28

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

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JUDGMENT : R.M.Chhaya, J. 1. This appeal is preferred under Section 378 of the Code of Criminal Procedure against the judgment and order of acquittal passed by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 53 of 1996 dated 31.12.1996. 2. It is the case of the prosecution that, on 09.10.1995, the complainant – Balvantji Bajuji Thakore came to Village: Tharad. It is further the case of the prosecution that, in the evening, complainant-Balvantji Thakore and his cousin (son of his uncle) – Anopji Bajuji Thakore and the present respondents went together at the outskirts of Village: Khorda to consume liquor. As per the case of the prosecution, after consuming liquor at about 10:00 p.m., while the four persons so assembled were about to leave, the respondent no.1 proposed to the deceased Anopji Bajuji Thakore to accompany him to visit Village: Vadia, which was known for prostitution. It is the case of the prosecution that, as the deceased refused to do so, the respondents got enraged, and as per the case of the prosecution, the respondent no.2 caught hold of the deceased and respondent no.1 – Prakashbhai Okhabhai Mochi took out the knife and inflicted the blows to the deceased on forehead and one blow on the chest. As per the complainant, the deceased became unconscious, and was profusely bleeding, and at that moment, as per the case of the prosecution, the respondents – accused ran away from the spot. It is further the case of the prosecution that, the complainant-Balvantji Thakore, due to fear, hided in the bushes, till the next morning, and thereafter walked out to Village: Asasan and informed the brother of the deceased and other relatives of the deceased. As per the prosecution case, the complainant reached Village: Asasan at about 07:00 a.m. on the next morning, F.I.R. was lodged by the complainant on 09.10.1995 at 12:00 noon. 3. The police investigated the offence, recorded statements, and charge-sheet was filed before the competent Court, and ultimately the case was committed to the Court of Sessions, and the respondents came to be arrested. The learned Sessions Court framed the charge for the offences punishable under Sections 302 and 114 of the Indian Penal Code and Section 135 of the Bombay Police Act, at Exh.3. The trial was conducted before the Sessions Court. The learned Sessions Court framed the charge for the offences punishable under Sections 302 and 114 of the Indian Penal Code and Section 135 of the Bombay Police Act, at Exh.3. The trial was conducted before the Sessions Court. The prosecution examined and relied upon 14 prosecution witnesses and also relied upon the documents, such as inquest panchnama at Exh.19, panchnama of the recovery of knife at Exh.27, map of scene of offence at Exh.20, other panchnamas at Exh.21, 24, and 29, post-morterm note at Exh.39, F.S.L. report at Exh.46 and 47. 4. The learned Sessions Judge by the impugned judgment and order was pleased to acquit both the respondents and came to the conclusion that the prosecution has not been able to prove the guilt as alleged. 5. Being aggrieved by the said judgment and order of the acquittal, the State has preferred this Appeal, as mentioned hereinabove. 6. Heard Mr. Hardik Soni, learned Additional Public Prosecutor for the appellant-State and Mr. Monil Shah, learned advocate for Mr. Mehul Rathod, learned advocate for the respondents-accused. 7. Mr. Hardik Soni, learned APP has taken this Court through the deposition of the prosecution witness no.1 – original complainant at Exh.9 and the Doctor who performed the post-mortem at Exh.40 and other prosecution witnesses. He has also taken this Court through the panchnama of the recovery of knife and FSL report at Exhs. 46 and 47 and has contended as under: 7.1. That the learned Sessions Judge has erred in not believing the evidence of the complainant, who is an eye witness of the incident. Mr. Soni further referring to the injuries as shown in P.M. note, more particularly, column no. 17 contended that the version of the eye witness and the complainant is fully corroborated with the medical evidence. Mr. Soni further contended that the learned Sessions Judge has also misread the medical evidence as well as the oral deposition of the Doctor, who performed autopsy upon the deceased, and therefore, committed an error in coming to the conclusion that the prosecution has even failed to prove the injury caused to the the deceased. 7.2. Mr. Soni, learned Additional Public Prosecutor has further contended that the learned Sessions Judge has gone beyond its jurisdiction and has committed an error in examining the aspect of the type of injury which was found upon the body of the deceased. According to Mr. 7.2. Mr. Soni, learned Additional Public Prosecutor has further contended that the learned Sessions Judge has gone beyond its jurisdiction and has committed an error in examining the aspect of the type of injury which was found upon the body of the deceased. According to Mr. Soni, once the alleged weapon knife was recovered and injuries found on the body of the deceased, more particularly, injury no. 2, it clearly indicates the manner in which the blow was given by the respondent no.1 – accused no.1 on the vital part of the body of the deceased. According to Mr. Soni, said part is amply corroborated by the oral evidence of the complainant, who is an eyewitness. 7.3. Mr. Soni further contended that the FSL report as well as the panchnama of recovery /discovery directly link the role played by the respondent no.1 in inflicting two blows on the vital part of the body of the deceased with knife and the role which is attributed to the respondent no.2, makes possible for the respondent no.1 to inflict such blows with an intention to kill the deceased, knowing fully well that the same would cause the death. Mr. Soni also further contended that the injury found on the body of the respondent no.1 is also not explained. According to Mr. Soni, the injury which was found on the body of the respondent no.1 accused no.1 clearly proves his presence at the time of occurrence. 7.4. According to Mr. Soni, all the ingredients of Section 299 of the Code of Criminal Procedure are proved by the prosecution, and therefore, order of conviction is nothing but mis-reading and mis-appreciation of the evidence on record, and on the aforesaid grounds, Mr. Soni contended that the order of acuqittal be quashed and set aside and order of conviction be passed against both the accused persons – respondents for the offence under Sections 302 r/w. 114 of the Indian Penal Code and Section 135 of the Bombay Police Act, by allowing the appeal. 8. Per contra, Mr. Monil Shah, learned advocate has contended to uphold the judgment and order of the learned Sessions Judge. Mr. 8. Per contra, Mr. Monil Shah, learned advocate has contended to uphold the judgment and order of the learned Sessions Judge. Mr. Shah, relying upon the observations made by the learned Sessions Judge as well as deposition of the eye witness – prosecution witness no.1 – Balvantji Thakore contended that the conduct of the so called eye witness, on the contrary, creates doubt about the veracity of the deposition of the said witness. Mr. Shah further contended that the learned Sessions Judge has rightly appreciated the evidence on record and has rightly disbelieved the version given by the so called eye witness. Mr. Shah contended that the presence of the eye witness on the scene of occurrence itself is doubtful. Mr. Shah further contended that the said eye witness has admitted in his deposition that he himself had consumed liquor and in his cross-examination, he has admitted the fact that after they consumed liquor, they came to Padadar Patiya along with other three persons, out of which, respondent nos. 1 and 2 – original accused, left in Jeep. 8.1. Mr. Shah, learned advocate contended that having admitted the said fact, even according to the eye witness, even if is believed, the respondents were not present as alleged. Mr. Shah further contended that so called eye witness – PW1 is a go-tup witness and has wrongly been projected by the prosecution as an eye witness. 8.2. Mr. Shah further contended that, as such the version of the so called eye witness – PW1 which has not rightly been believed by the learned Sessions Judge, as there is no evidence on record, which even remotely proved about the occurrence, in the manner in which the prosecution has contended before the learned Sessions Judge. Mr. Shah contended that the blood group of either of the respondent is not on record. Mr. Shah referring to the FSL report at Exh.47, in particular, contended that bloodstains which were found on the weapon – knife, has not been decided by the forensic science laboratory. Mr. Shah also contended that the prosecution has not even asked as to what was the blood group of either of the respondents and nothing on record is brought by the prosecution. Mr. Shah further contended that therefore, no link towards the guilt of either of the respondent is established by the FSL report. 8.3. Mr. Mr. Shah also contended that the prosecution has not even asked as to what was the blood group of either of the respondents and nothing on record is brought by the prosecution. Mr. Shah further contended that therefore, no link towards the guilt of either of the respondent is established by the FSL report. 8.3. Mr. Shah further contended that the very conduct of the PW1 on the contrary proves that he is not telling the truth. According to Mr. Shah, the conduct of hiding for almost nine hours, that too at night hours, is rightly not believed by the learned Sessions Judge. Mr. Shah, contended that the incident even as per the prosecution, has taken place at about 10:30 p.m., whereas, as per the version of PW1, he reached Village: Asasan at about 07:00 a.m. on the next day and F.I.R. was lodged after a period of more than five hours, after the PW1 reached Village: Asasan and informed the relatives of the deceased, who are close relatives of PW1 also. According to Mr. Shah, respondents have been wrongly roped in the present case, because of some personal enmity with the family of the deceased. Mr. Shah further referring to the observations of the learned Sessions Judge, more particularly, in paragraphs 26 to 30 contended that the view taken by the learned Sessions Judge is on correct appreciation of the evidence on record, which does not require any alteration. According to Mr. Shah, the appeal being completely meritless, deserves to be dismissed. 9. No other or further submissions, contentions or grounds have been raised by the learned advocates appearing for the respective parties. 10. Having heard the learned advocates for the parties and on perusal of the original records and proceedings, the whole case of the prosecution is based on the oral deposition of PW1 in particular, who according to the prosecution was an eye witness. The original record shows that FIR at Exh.9 was lodged by PW1 Balvantji Thakore with Tharad Police Station on 09.10.1995 at 12:00 in noon. Upon considering the deposition of PW1, the said witness has deposed that he was working as a Conductor. He has stated that on the date of the incident at about 12:00 in noon, he alongwith deceased Anopji had gone to Tharad. Upon considering the deposition of PW1, the said witness has deposed that he was working as a Conductor. He has stated that on the date of the incident at about 12:00 in noon, he alongwith deceased Anopji had gone to Tharad. He has also deposed that at about 07:30 p.m., the respondents met them, near Jakatnaka and from there, all four of them went to Padadar Patiya for consuming liquor in a Jeep which belong to one Rameshbhai Dhobi. He has further deposed that from Padadar Patiya, they walked down to Village: Khorda and there they purchased four bottles of liquor by paying Rs.40/. He has also stated that till 10 o'clock, they had consumed liquor, and thereafter, walked back to Padadar Patiya. He has further deposed that, when they reached at Padadar Patiya, respondent no.2 – original accused no.2 told the deceased-Anopji Thakore to go to Vadiya, which was famous for prostitution. He has further deposed that as the deceased refused to do so, the respondent no.2 original accused no.2 caught hold of deceased – Anopji and respondent no.1 – original accused no.1 took out knife from his bag and inflicted two blows, one on the forehead and another on the chest. It is further deposed by the said witness that he was standing there and Anopji-deceased fell down and he found blood from the wounds. He has further deposed that thereafter, the respondent nos. 1 and 2-the accused persons ran away, and as the deceased was profusely bleeding, he got frightened, and he realized that the deceased would die, and therefore, left Anopji there, and started walking towards Village: Asasan. At the same breath, he states that during the night, he hideout at Padadar Patiya and he reached Village: Asasan at 07:00 a.m. on the next day. He has stated that the incident took place at around 10:30 p.m. He has stated that on reaching Village: Asasan, he informed the younger brother of the deceased – Prathanji Babuji Thakore, that his brother has expired and that the respondent no.1 inflicted blow with a knife and respondent no.2 caught hold the deceased. He has further stated that when he informed Prathanji about the incident, at that point of time, Thakore Jora Jetha and Thakore Lera Senga were present. He has stated that when he informed about the incident, mother, father and wife of the deceased were not present. He has further stated that when he informed Prathanji about the incident, at that point of time, Thakore Jora Jetha and Thakore Lera Senga were present. He has stated that when he informed about the incident, mother, father and wife of the deceased were not present. He has further stated that thereafter they went to the scene of occurrence at about 9 o'clock, where the deadbody of the deceased was lying, and thereafter, the dead-body of the deceased was brought to the village, wherein, other relatives of the deceased also had assembled, and thereafter, he alongwith other four persons went to the Police Station situated at Tharad. He has also stated that, thereafter the police came to the scene of occurrence which was shown by him. He has also stated that distance between Padadar Patiya and Tharad Police Station is about 10 K.M. He has also stated that they went to Police Station in a vehicle. He has also stated that the distance from Padadar Patiya to his Village: Asasan is also 10 K.M. He has specifically stated that, he went from Padadar Patiya to his Village: Asasan by walking. 11. Considering his cross-examination, he has admitted that he himself had consumed liquor. He has admitted in his cross-examination that when blows were inflicted upon the deceased, he did not shout. He has also admitted that he did not make any attempt to save the deceased. He has also stated in his cross-examination that when respondent no.1original accused no.1 inflicted knife blows, he was standing at a distance of about 10 feet. In his cross-examination, he has further stated that he hided in the bush for about five minutes, and thereafter, he came back and started walking towards Village: Asasan, where he resides and reached Village: Asasan at about 07:00 a.m. He also admitted in the cross-examination that he started walking towards Village: Asasan at about 10:30 p.m. 12. The prosecution has thereafter examined Jorabhai Jemabhai PW4 Exh. 13 who has been declared hostile. The prosecution has also examined the brother of the deceased, Pradhanji Bajuji as PW5, Exh.14, however, considering the deposition, he is a hearsay witness. In his cross-examination, it is noteworthy that he has stated that on inquiry as to where Balvant stays during the night. The prosecution has thereafter examined Jorabhai Jemabhai PW4 Exh. 13 who has been declared hostile. The prosecution has also examined the brother of the deceased, Pradhanji Bajuji as PW5, Exh.14, however, considering the deposition, he is a hearsay witness. In his cross-examination, it is noteworthy that he has stated that on inquiry as to where Balvant stays during the night. He was informed by Balvatji – eye witness PW1, that as he had not seen blood, he became unconscious and fell down there. The prosecution has thereafter examined the panch witnesses who have turned hostile including the panch witnesses of the recovery and discovery of the knife. 13. The prosecution has also examined Dr. Rajendra Amrutlal Gajjar as PW11, Exh.37 who performed the postmortem upon the deceased. The said witness has referred to the injury as mentioned in the postmortem note, Exh.14, which are as under: “(1) Cut wound of Triangular in shape (T) shaped on forehead, 5 cm long, 3 cm, 2.5 cm deep wound going medially and slightly upwards. (2) Puncture wound of about 2 cm long onuter side, (in diameter) round and going deep and medially, 6 cm deep just below lower border of Right clavicle bone in mid-clavicular line. (3) Abrasion 0.5 cm wide 3 cm long liner on oblique in position on laternal aspect of neck. (4) Contusion 2 x 2 cm round in middle & Right arm laterally. (5) Two small abrasion of 1 x 1 cm size of left arm of left post aspect & below it. (6) A contusion 2 x 1 cm oval on 1 cm alone the left leg anterior aspect.” 14. He has also stated that there is no evidence of any type of fracture on external examination, and according to the said Doctor, the cause of death was due to cardiac respiratory arrest due to hypovolemic shape. The said witness has categorically stated the type of injuries found on the body of the deceased and in his cross-examination, he has stood to the test of his testimony and has stated that he knows about the puncture wound. He has also stated that, if the round puncture wound is found, it is to be presumed that the weapon used was also round. He has also stated that, if the round puncture wound is found, it is to be presumed that the weapon used was also round. He has stated in his cross-examination that the weapon knife is not a round weapon and he has stated that injury no.2 cannot be caused by the weapon knife. He has also stated in his cross-examination that injury no. 1 which is of Tshape can be caused by a weapon with sharp edge on both the sides or even with the edge of one side. He has also stated that both the injuries cannot be caused by one weapon. 15. The prosecution has also examined Dr. Pratapbhai Okhabhai Patel who was working as a private Doctor at Village: Lakhani, Tal.: Deesa, Dist.: Banaskantha as PW2 at EX10. The said witness has stated that he examined respondent No.1 Prakashbhai Okhabhai Mochi on 08.10.1995. He has stated that, the history given by Prakashbhai was that he had fallen down. He had further stated that, two injuries were found, viz. (I) CLW injury above Right eyebrow, and (II) CLW injury on the left forearm. He has stated in his examination that, if the person is drunken and falls down, such injury can be caused. The prosecution has relied upon the deposition of Karsanbhai Jivanbhai Jadav, Police Sub Inspector Investigating Officer as PW13 Exh44. The Investigating Officer has stated the manner in which the investigation was carried out and statements were recorded. However, nothing further can be culled out from the deposition of the investigating officer. The FSL report at Exh.46 contains report of six items, viz. (i) soil, (ii) control soil, (iii) watch, (iv) open shirt, (v) open shirt and (vi) knife. However, FSL report at Exh.47 does not indicate that what was the blood groups of the deceased or accused. The Yadi of the FSL which is on record at Exh.46 indicates that no other samples were sent, though, collected. 16. The record indicates that the recovery /discovery of knife is not proved by the prosecution and the other prosecution witnesses who were panch witnesses have turned hostile. Upon re-appreciation of the evidence as discussed above, the opinion of the Doctor is that, two injuries found on the body of the deceased cannot be caused by one weapon. The Doctor has also opined that injury no. 2 cannot be caused by a weaponknife. Upon re-appreciation of the evidence as discussed above, the opinion of the Doctor is that, two injuries found on the body of the deceased cannot be caused by one weapon. The Doctor has also opined that injury no. 2 cannot be caused by a weaponknife. Upon re-ppreciation of the evidence of PW1 the eye witness, the conduct of the said witness itself is doubtful. PW4, Exh.13 has categorically stated that when he inquired from PW1 as to where he was for the whole night, the said witness was informed by PW1, the eye witness, that he had never seen the blood, he became unconscious and fell down. Whereas, in his deposition, he has categorically mentioned that he hided in the bush, for five minutes, and thereafter, walked down to Village: Asasan, which was at a distance of 10 K.M. He has also categorically stated that he started walking at 10:30 p.m. It is therefore not believable either way that it took almost 8½ hours for PW1, the eye witness, to walk down at a distance of 10 K.M. Considering the evidence of PW4, Exh.13, the version of eye witness before the said witness is totally different. Upon considering the version of PW1 eye witness and upon re-ppreciation of the same, this Court finds that there is absence of ring of truth in the version of the said witness. Considering the observations made by the learned Sessions Judge, more particularly, discussing the relevant evidence of he eye witness, this Court is in total agreement of the observations made in the impugned judgment and order passed by the learned Sessions Judge. Even considering the evidence as a whole, the version of PW1 and the version of the Doctor as well as the medical evidence does not match even the injury which is attributed to the respondents and does not correspond with the version of PW1, the eyewitness and the Doctor who performed autopsy upon the deceased. The panchas of the recovery of the clothes of the accused no.1 – respondent no.1 is not proved by the prosecution. Even, the recovery / discovery of the weapon knife is not proved at all, as provided under Section 27 of the Evidence Act. 17. The panchas of the recovery of the clothes of the accused no.1 – respondent no.1 is not proved by the prosecution. Even, the recovery / discovery of the weapon knife is not proved at all, as provided under Section 27 of the Evidence Act. 17. Resultantly, we hold that the learned Sessions Judge has committed no error in appreciating the evidence on record and passing the impugned judgment and order of acquittal and the same deserves to be confirmed and is hereby confirmed. The judgment and order of acquittal passed by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 53 of 1996 dated 31.12.1996 is confirmed. Accordingly, the appeal fails and is dismissed. 18. R & P be sent back to the concerned Sessions Court, forthwith. Bail bond, if any, shall stand cancelled.