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2020 DIGILAW 187 (GUJ)

State Of Gujarat v. Koli Megha Jina

2020-01-29

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, Bhavnagar in Sessions Case No. 4 of 1996 dated 31.12.1996, the State Government has preferred this appeal under Section 378 of the Code of Criminal Procedure. We have also perused the original record and proceedings of the case as well as paper book. 2. It is the case of the prosecution that on 08.09.1995 between 10 a.m to 11 a.m while deceased Sadthabhai Amrabhai was fishing in the water banks of Shatrunji situated at village Satanpar, the respondent – original accused assaulted with knife and gave blow on the left side of the body and on left hand elbow and caused his death. On the aforesaid factual matrix, it is the case of the prosecution that the respondent-accused has committed an offence under Section 302 of the Indian Penal Code. An FIR was lodged by the Bajuben Bhil – PW No.2 with Talaja Police Station on 08.09.1995 at 6 pm, which came to be registered as CRI135 of 1995 being Exh.39. The investigation was done by the Police Authority and the respondent-original accused came to be arrested for the said offence. After the investigation, the charge sheet was filed for offence under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act and same was committed to the Sessions Court and was registered as Sessions Case No. 4 of 1996 before the Court of Additional Sessions Judge, Bhavnagar at Mahuva. The charge was framed at Exh.3 for the offences punishable under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. The respondent-original accused did not plead guilty and preferred to be tried, Sessions Court proceeded with the trial. The prosecution has examined 13 witnesses as under: Name of the witness. Exh. No. Dr. Bhupendra Govindlal Gajjar PW No.1 10 Bajuben Dhirabhai Bhil PW No.2 13 Baturbhai Haribhai Koli Patel PW No.3 19 Dhirubhai Tejabhai Koli Patel PW No.4. The respondent-original accused did not plead guilty and preferred to be tried, Sessions Court proceeded with the trial. The prosecution has examined 13 witnesses as under: Name of the witness. Exh. No. Dr. Bhupendra Govindlal Gajjar PW No.1 10 Bajuben Dhirabhai Bhil PW No.2 13 Baturbhai Haribhai Koli Patel PW No.3 19 Dhirubhai Tejabhai Koli Patel PW No.4. 20 Bharatbhai Chaganbhai PW No.5 22 Parshottambhai Nanabhai Bhraman PW No.6 23 Lakhabhai Dudabhai Baraiya PW No.7 25 Kantibhai Sadathabhai Bhil PW No. 8 33 Odhadbhai Amrabhai BhilPW No.9 34 Hiraman Madhubhai PW No. 10 35 Radiyatben Jinabhei Baraiya PW No.11 45 Liliben Meghabhai Baraiya PW No. 12 46 B B Gohil PW No. 13 47 The prosecution has relied upon the following documentary evidence: Documentary evidence Exh. No. Postmortem Note 12 FIR 39 Inquest Panchnama 26 Panchnama of cloths of deceased 29 Map of place of occurrence 28 Blood report of accused 30 Yadi Mudamal sent to FSL for serological 31 Serological Report 56 FSL Report of Junagadh 55 2.1. As per the case of the prosecution, the deceased was assaulted with knife as observed herein above by the accused and it is further the case of the prosecution that PW No.8 Kantibhai son of deceased was present with the deceased while he was fishing and he ran towards his home and informed his mother – complainant PW No.2 Bajuben about the incident. It is further the case of the prosecution that the body of the deceased was brought on the shore near the field of one Babubhai Mer and other relatives are informed. 2.2. The prosecution has examined Dr. Bhupendra Govindbhai – PW No.1 at Exh.10 who performed autopsy upon the dead body of the deceased. The said witness has narrated injuries found on the body of the deceased and in his examination in chief has deposed that injuries found on the body of the deceased can be caused by the sharp weapon. In his cross examination, he has stated that except injuries which are mentioned in the postmortem, no other injuries were also noticed on the body of the deceased. He has also stated in his cross examination that type of injuries which were found on the body of the deceased a person would be alive only for 30 minutes. He has admitted the fact that he noticed stock of blood in the chest of the deceased. He has also stated in his cross examination that type of injuries which were found on the body of the deceased a person would be alive only for 30 minutes. He has admitted the fact that he noticed stock of blood in the chest of the deceased. He has further admitted that except that place no where there was stock of blood found on the body of the deceased. He has also stated in his cross examination that considering the injuries received by the deceased the accumulation of blood was taken time about 15 minute. In his cross examination however he has admitted the fact that fracture of ribs found on the body of the deceased. He has also admitted the fact that injuries which were found on the body of the deceased, cannot be caused by the weapon knife. 2.3. The prosecution has thereafter examined Bajuben Bhil wife of the deceased PW No.2 at Exh.13. In her deposition, she has averred that her husband deceased and her son Kantibhai had gone for fishing and her son came back to the house and informed her that the accused has inflicted blows with the knife upon body of the deceased. She has stated that thereafter she went to the scene of occurrence with her son. She had also stated that she found that her husband deceased had received injuries on the left side of his body. She has further stated that as her husband talked for water, she gave water and thereafter her husband breath his last. She has further stated that as there was high tide in sea, a log of wood came drifted and she along with her son put up body of her husband deceased on the said wooden log and brought body of the deceased to the shore and kept in near the field of Babubhai Mer. She has further stated that her son Kantibhai started crying loudly, because of which, relatives i.e. Surabhai Amrabhai, Odhadbhai Amrabhai, Dhanjibhai Amrabhai and others assembled near the body of the deceased. In her cross examination, she has denied the suggestion made by the defence including the suggestion of time when the dead body of her husband was brought to the Shore and near the field of Babubhai Mer. She has also stated in her cross examination that she was not aware as to who has informed the police. In her cross examination, she has denied the suggestion made by the defence including the suggestion of time when the dead body of her husband was brought to the Shore and near the field of Babubhai Mer. She has also stated in her cross examination that she was not aware as to who has informed the police. She has also stated that she cannot say when the police has came in the place of occurrence. However, she has admitted that she has lodged the complaint. The prosecution has thereafter examined Bhaturbhai Haribhai Koli Patel – PW No.3 at Exh.18 who happens to be panch witness of the scene of the occurrence. The prosecution has thereafter relied upon the deposition of the PW No.4 Dhirubhai Tejabhai Koli Patel and PW No.5 Bharatbhai Chaganbhai Luvar who are the panch witnesses of the arrest of the accused, however both the panch witnesses have turned hostile. The prosecution has thereafter relied upon the PW No.6 at Exh.23 and PW No.7 at Exh. 25 who are the panch witnesses of the recovery of the weapon knife. However, both the prosecution witnesses have turned hostile. 2.4. However, the important witnesses examined by the prosecution is Kantibhai Bhil, who was child witness aged 13 years and has examined the said witness as eyewitness. Considering the deposition of the PW No.8 Kantibhai son of the deceased, he has narrated in his examination that he watched the accused inflicting one blow with knife on the left side of the body of his father-deceased. He has also stated that the deceased and the accused had some dispute about lying of the net for fishing purpose. He has also stated in his deposition that he went and informed his mother that the respondent accused has beaten his father. He has also narrated as to how the body of the deceased was brought to the shore on the wooden log along with her mother PW No. 2. In his cross examination he has stated that on the date of incident, he had not given any statement to the police and did not talk with the police about the incident. He has stated in his cross examination that police came on the next day and his statement was recorded. He has admitted in his cross examination that he was on the shore and could not reach near his father when the incident occurred. He has stated in his cross examination that police came on the next day and his statement was recorded. He has admitted in his cross examination that he was on the shore and could not reach near his father when the incident occurred. In his cross examination, he has further stated that he had talked about the deposition given by his mother PW No.2 in the Court. He has also stated that his house is at the distance of about 15 minute away from the place of occurrence. He has stated that when the accused assaulted his father, he went to his house shouting and running. He has also stated that till he reached his house, he continued to shout. He also stated in his cross examination that house of Odhadbhai and Surabhai and other five relatives are adjoining to the house of the witness. He has also admitted that house of his grandfather is at a distance of 250 ft from his house. He has stated in his cross examination that dead body of his father was brought to the field of Babubhai Mer by his grandfather Odhadbhai, Surabhai and his maternal uncle Rasikbhai. He has admitted the fact that he and his mother did not bring the body of his father till the field of Babubhai Mer. At the same breath, he admitted that he informed about the incident to his grandfather, Surabhai and maternal uncle-Rasikbhai at about 1.30 p.m. He has also stated in his cross examination that he is not aware when the police came to the scene of occurrence. He has stated in his cross examination that on the date of incident he did not see any police. He has also stated in his cross examination that accused and his father were not any speaking terms with each other. He also denied the suggestions of the defence as to where house of the deceased is situated at Sartanpar. He has also stated that distance between house of his grandfather and the field of Babubhai Mer is about 250 ft. 2.5. The prosecution ha also examined Odhadbhai Bhil PW No.9 at Exh.34 the father of the deceased, however he has turned hostile. The prosecution has thereafter relied upon the deposition of Radiyatben Baraiya mother of the accused – PW No.11 at Exh.45 and wife of the accused-Liliben Baraiya PW No.12 at Exh.46. 2.5. The prosecution ha also examined Odhadbhai Bhil PW No.9 at Exh.34 the father of the deceased, however he has turned hostile. The prosecution has thereafter relied upon the deposition of Radiyatben Baraiya mother of the accused – PW No.11 at Exh.45 and wife of the accused-Liliben Baraiya PW No.12 at Exh.46. However, both the prosecution witnesses have not supported the case of the prosecution and have been declared hostile. The PSO of the Police Station Hiraman Madhubhai Gavali PW No.10 at Exh.35 and Bharatsinh Balvantisinh PW No.13 at Exh.47. The IO has deposed as to how the investigation was carried out him. In his cross examination, he has stated that Kantibhai PW No.8 Child witness is agriculture labour as mentioned in his statement. The said witness has however denied other suggestions made by the defence. The Serological Report at Exh.56 indicates that the blood found on the weapon knife has remained undecided. Similarly, blood found on the sweater i.e. Banyan of the accused is opined as undecided. The blood found on the Niker (underwear) of the accused is found to be B group, which matches with the blood group of the deceased. The injuries found upon the body of the deceased, as per the postmortem note are as under: “Inside wound over backside left posturing chest wall 1”x1/2' oblique in direction on most. Literal part 4” below the left arm pint. Skin abrasion over left forearm in middle part on interior surface. Inside wound in cone shaped 1” in upper part & ½” in lower end.” 2.6. After appreciating the evidence as a whole, the learned Sessions Judge by the impugned judgment and order was pleased to acquit the original accused-respondent herein 4 for the offences punishable under Sections 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. 2.7. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Sessions Judge, State of Gujarat has preferred present appeal. 3. Heard Mr. Hardik Soni, learned Additional Public Prosecutor for the State and Mr. Pratik Barot, learned advocate for the respondent-original accused. 4. Mr. Soni, learned Additional Public Prosecutor has taken this Court to the factual matrix on the basis of charge framed at Exh.3 and has also taken this Court to the deposition of PW No.1 Dr. 3. Heard Mr. Hardik Soni, learned Additional Public Prosecutor for the State and Mr. Pratik Barot, learned advocate for the respondent-original accused. 4. Mr. Soni, learned Additional Public Prosecutor has taken this Court to the factual matrix on the basis of charge framed at Exh.3 and has also taken this Court to the deposition of PW No.1 Dr. Bhupendra Govindbhai, PW No.2 Bajuben Bhil, PW No.8 Kantibhai in particular as well as deposition of PW No.13 Bharatsinh. Mr. Soni has contended that the learned Sessions Judge has not appreciated the evidence on record and has wrongly disbelieved the version given by the eyewitness PW No.8 who happens to be the son of deceased. Mr. Soni contended that even though he was child witness considering the deposition of PW No.8, the observation made by the learned Sessions Judge that his presence with the deceased on the place of occurrence is doubtful, is without any basis. Mr. Soni further contended that the complainant PW No.2 has fully supported the case of the prosecution and according to said witness the deceased did make oral dying declaration before her in clear terms that deceased was assaulted with knife by the accused. Mr. Soni further contended that knife was recovered at the instance of the respondent and injuries found on the deceased was by the weapon knife was proved even as per the opinion expressed by PW No.1 who performed the postmortem upon dead body of the deceased. The injuries no.1 which was fatal, just match with the cause of death. Mr. Soni therefore contended that even as per the medical evidence on record coupled with the deposition of PW No.1, PW No.2 and the eyewitness – PW No.8, the same corroborates and prosecution has been able to prove the guilty of the accused. That the learned Sessions Judge has wrongly appreciated the evidence of witnesses who have categorically deposed before the Sessions Court as to how the incident has occurred and injuries inflicted by the respondent, still however the same has not been appreciated and on wrong appreciation, the learned Sessions Court has passed the impugned judgment and order of acquittal. Mr. Soni, learned APP has submitted that there are no contradictions or omissions in the version of the witnesses, still however the learned Sessions Judge has come to the conclusion that the same is not trustworthy. On the aforesaid ground, Mr. Mr. Soni, learned APP has submitted that there are no contradictions or omissions in the version of the witnesses, still however the learned Sessions Judge has come to the conclusion that the same is not trustworthy. On the aforesaid ground, Mr. Soni, therefore, contended that judgment and order of acquittal deserves to be quashed and set aside and same deserves to be reversed and order of conviction deserves to be passed with appropriate sentence and respondent deserves to be sentenced for an offence under Section 302 of the Indian Penal Code by allowing the appeal. 5. Per contra, Mr. Pratik Barot, learned advocate for the respondent-accused has supported the impugned judgment and order of acquittal. Mr. Barot has contended that the Sessions Court has on correct appreciation of evidence on record has examined and tested the testimony of so called eyewitness – PW No.8. Mr. Barot relying upon the judgment of the Hon'ble Supreme Court in the case of Shamim vs. State (Government of NCT of Delhi) reported in (2018)10 SCC 509 as well as judgment of the Hon'ble Supreme Court in the case of Digamber Vaishnav and Another vs. State of Chhattisgarh reported in (2019)4 SCC 522 contended that while appreciating the evidence of witnesses, more particularly, who is child witness, the element of truth has to be examined more accurately. Mr. Barot contended that the learned Sessions Judge on examining the evidence of PW No. 8 so called eyewitness has correctly appreciated the same and has rightly come to the conclusion that the same does not inspire any confidence about its veracity. Mr. Barot also further drew attention of this Court to the fact that there is material contradiction between the deposition of PW No.2 Bajuben and PW No.8 Kantibhai and their testimony is therefore, not believed by the Sessions Court. Mr. Barot referring to the deposition of PW No.1 Dr. Bhupendra contended that even as per the postmortem note only one injury which was inside the wound was found on the body of the deceased and as per the Doctor the same cannot be caused by the weapon knife. Mr. Barot reiterated that considering the type of injuries found on the body of the deceased, the same cannot be caused by the weapon knife even as per the expert opinion i.e. Dr. Gajera. Mr. Mr. Barot reiterated that considering the type of injuries found on the body of the deceased, the same cannot be caused by the weapon knife even as per the expert opinion i.e. Dr. Gajera. Mr. Barot further contended that only because of blood group of deceased was found on the Niker (underwear) of the respondent accused, the same cannot be made a sole basis for conviction of the respondent when the panch witnesses have turned hostile and prosecution has not been able to prove whether it is Niker (underwear) of the deceased or not. Mr. Barot referring to the yadi at Exh.31 contended that though yadi mentioned that it was Niker of the deceased, recovery of the same has not been proved by the prosecution and therefore, no reliance can be placed upon. Mr. Barot contended that after correct appreciation of evidence on record, the learned Sessions Judge has rightly recorded the detailed order of acquittal, which does not require any interference. On the aforesaid ground, Mr. Barot contended that appeals being merit less, deserve to be dismissed. 6. No other and further submissions, grounds and contentions have been raised by the learned advocates for the respective-parties. 7. Upon considering the evidence as a whole, the case of the prosecution is mainly based upon deposition of PW nos. 2 and 8. PW No.8 Kantibhai son of the deceased was aged 13 years on the date, on which he deposed before the Sessions Court. The learned Sessions Court after appreciating the evidence on record has observed that his presence itself on the scene and time of occurrence is doubtful. Considering the principle laid down by the Hon'ble Supreme Court in the case of Shamim (supra) deposition of such child / young witness in its credibility as to be examined very minutely. Considering the deposition of PW No. 8, according to him, at the time of assault he was not with his father but was away at the shore. Even the said witness has further stated that he went and running to his house to inform his mother PW No.2 about the incident. He himself has stated that geographical location as explained by the said witness clearly borne out that house of other relatives who are found to be present after the incident where dead body of the deceased at the field of Babubhai Mer were situated in between. He himself has stated that geographical location as explained by the said witness clearly borne out that house of other relatives who are found to be present after the incident where dead body of the deceased at the field of Babubhai Mer were situated in between. He himself has deposed that house of five relatives including grandfather is in same vicinity i.e. at the distance of about 250 ft, the same has deposed by the very said witness. Further in his cross examination, he has stated that dead body of the deceased was brought to the Shore near the field of Babubhai Mer by his grandfather, Surabhai and his maternal uncle Rasikbhai whereas PW No.2 Bajuben states that as there was high tide in sea, a log of wood came drifted and she along with her son put up body of her husband deceased on the said wooden log. Apart from the aforesaid, even considering the injuries found on the deceased as narrated herein above, it was a incise wound and as per the opinion of the Doctor also, the same is not punctured wound which was caused by the weapon knife. The recovery is not proved as panch witnesses have turned hostile and and except the evidence PW No.1, PW No.2 and PW No. 8, the prosecution has not been able to prove the guilty of the accused. We are in total agreement with the observation made by the learned Sessions Judge as regards the conduct of PW No.8 so called child witness. Even contention raised by the learned Additional Public Prosecutor that dying declaration was made by the deceased before the PW No.2 Bajuben is not believable and even as per the opinion of the doctor that injuries found on the dead body of deceased person would remain alive for 15 minutes, the distance from the scene of occurrence to the house of the PW No.2 Bajuben, even if it is construed that it was 15 minutes away and even if the case of the prosecution is believed as narrated by the PW No.2 before the Sessions Court, she immediately went to the scene of occurrence and same would consume at least more than 30 minutes and therefore, the version of PW No.2 that her husband-deceased asked for water and also informed her that he was assault with knife by the respondent accused, is not believable. The version of the PW No.2 and PW No.8 was not inspired any confidence and this Court finds that there is absence of ring of truth of version of PW No.2 and PW No.8. Mr. Barot learned advocate for the respondent has rightly contended that as the prosecution has not been able to prove the recovery of Niker of the deceased, the conviction cannot be based on the sole factor and that the blood group of the deceased was found in the serological report on the Niker of the respondent accused. The evidence also shows that father of the deceased has not supported the case of the prosecution and therefore, considering the evidence as a whole and on re-appreciating the evidence of PW nos. 1, 2 and 8 and other evidence on record both oral as well as documentary, no other view is possible. Resultantly, this Court confirms the judgment and order of acquittal passed by the learned Sessions Judge. 8. In view of the above and for the reasons stated above, present appeal fails and is hereby dismissed 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.