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2023 DIGILAW 1150 (GUJ)

Dahyabhai Chhaganbhai Vavel v. State Of Gujarat

2023-12-05

A.Y.KOGJE

body2023
JUDGMENT : (A.Y. Kogje, J.) 1. The present appeal is preferred by the convict against the judgment and order dated 15.04.2004 in Sessions Case No.160 of 1990 by the Presiding Judge of Fast Track Court, District: Kheda at Nadiad. By the aforesaid judgment and order, the appellant came to be convicted for offence under Section 307 of the IPC and sentenced to rigorous imprisonment of 5 years and fine of Rs.200/-. 2. At the outset, learned advocate for the appellant has submitted that after the conviction recorded, the appellant was enlarged on bail by this Court by an order dated 21.09.2005 in Criminal Misc. Application No.9538 of 2005 and pending the appeal, the substantive sentence of imprisonment was suspended till final disposal of the appeal. However, it is reported that the appellant has expired on 10.10.2008 for which learned advocate for the appellant has relied upon the Death Certificate dated 10.10.2008 issued by the Talati-cum-Mantri of village – Ratanpur. The appeal being of year 2004 and the appellant having expired in 2008, the appeal would abate. However as the appellant was a government servant and the conviction or otherwise in a criminal offence will have direct effect on the service benefits of the appellant, learned advocate for the appellant has made an oral request that the appeal be proceeded on merits as if the same is being argued on behalf of the legal heir of the deceased appellant. Considering the fact that the appeal is of the year 2004, the appellant having expired in the year 2008, and till date, there being no application for bringing legal heirs on record to pursue the appeal. However, in the interest of justice, the request made by the learned advocate for the appellant is hereby accepted and the appeal is heard as if being argued by the legal heir of the deceased appellant, otherwise will further prolong the hearing as appeal which is already pending since 2004. 3. Learned advocate for the appellant submitted that the conviction recorded is on an erroneous premise as the trial Court has recorded the conviction by giving importance and treating the dying declaration of the injured witness to be a substantial piece of evidence, whereas, the injured witness having survived, the dying declaration would be merely reduced to a statement, and therefore, the conviction could not have been based on such dying declaration. 4. 4. Learned advocate for the appellant submitted that the prosecution has failed to establish the case against the appellant beyond reasonable doubt as the injured witness himself has not deposed about the firing made by the appellant which caused injury on the injured witness. It is submitted that from the reading of the deposition of the injured witness, it is coming out that the position of the injured witness at the time of firing was such that he could not have visually seen the firing taking place. It is, therefore, only on the basis of presumption that as the appellant who was the colleague of the injured witness in the Police Department, was not standing by him at the time of firing, and therefore, the firing must have been made by the appellant. It is submitted that such deposition is only presumptive of firing by the appellant, but could not be treated as a conclusive evidence of eye witness of firing having taken place at the hands of the appellant. 5. Learned advocate again referring to the deposition of the injured witness that this witness has deposed in the cross-examination about the distance between the place where he was standing and place from which the firing took place which was approximately 150 meters, and therefore, it would not be possible for this witness to pursue about the firing having taken place at the hands of the appellant. He has also deposed that the time of the incident was late in the night at 11.00 p.m. and at that time apart from the lights of the vehicular traffic (trucks) there was no other light facility for giving clear visibility. 6. Learned advocate submitted that this witness can also not be believed as not only he has failed to see exactly who has fired but had lost his consciousness to perceive what had taken place upon receiving the fire arm injury. 7. Learned advocate submitted that the investigation had started on the basis of the complaint given by the informant – Illias who was the owner of the cabin, and therefore, Illias being an important witness was also an eye witness as the cause of dispute of the appellant was with Illias. 7. Learned advocate submitted that the investigation had started on the basis of the complaint given by the informant – Illias who was the owner of the cabin, and therefore, Illias being an important witness was also an eye witness as the cause of dispute of the appellant was with Illias. He has submitted that such an important witness has not supported the case of the prosecution and has been declared hostile, and therefore, merely on the basis of the evidence of an injured eye witness who was not able to pursue what happened after the firing took place. The prosecution is unable to bring on the charge by relying upon the informant who is also an eye witness. 8. Learned advocate for the appellant submitted that the prosecution has failed to establish conclusively that the bullet which cause the injury was from the fire arm belonging to the appellant. He submitted that the FSL report which only indicates about the fire arm being fired and the cartridge found during the course of investigation being traced to the same fire arm, but the investigating agency was not able to find the bullet which was actually fired which would conclusively establish the firing by the fire arm belonging to the appellant. On failure of this, the prosecution has failed to establish the case beyond reasonable doubt. Learned advocate has submitted that the evidence of Investigating Officer also does not support the case of the prosecution as from his deposition it is coming out that the rifle from which the alleged firing took place had remained at the scene of offence unclaimed till the Investigating Officer seized the rifle by way of Panchnama, and therefore, the investigation itself is not reliable to that extent. 9. Learned advocate has then submitted that the Police Constable who recorded the FIR, has indicated in his deposition that when he came across the injured witness for the first time in the hospital, at that time, he was not conscious. 9. Learned advocate has then submitted that the Police Constable who recorded the FIR, has indicated in his deposition that when he came across the injured witness for the first time in the hospital, at that time, he was not conscious. In fact, even from the evidence of the injured witness himself, he has deposed in cross-examination that after receiving bullet injury, he was not able to understand things around him, and therefore, the Police Constable who had recorded the FIR, having deposed that the injured witness was in unconscious state, therefore, the recording of the dying declaration is also put in doubt and the version given by the injured witness also becomes doubtful. 10. Learned advocate for the appellant submitted that the evidence of the prosecution cannot be relied upon considering the date on which the incident took place i.e. 15.02.1990, whereas, the Medical Officer had examined only after a day i.e. on 16.02.1990 when in the case history the injured witness has not given the name of the appellant and has mentioned that the injury is caused by the firing made by the other side. Learned advocate has submitted that there are several contradictions in the version of the witnesses with regard to the either purchase of cigarette Bristol or purchase of Bidi. 11. Learned APP opposed the appeal and submitted that the entire prosecution is based upon the evidence of the injured eye witness who himself is a Police Constable and was very much conscious when the incident took place. It is submitted that this witness has clearly deposed as to how the incident had begin when the appellant had entered into the verbal quarrel with the informant on the payment of money towards the purchase of bristol. Learned APP submitted that the deposition of the injured witness is clearly indicating that while he was in conversation with the owner of the lodge, it was the appellant who fired from behind causing him injury. Learned APP has, thereafter, taken this Court to the evidence of the Medical Officer who has describe the injury sustained by the injured witness and submitted that even from the deposition of the Medical Officer the position of injury will demonstrate that the injured witness was in a position to clearly see the firing being done by the appellant. 12. Learned APP has, thereafter, taken this Court to the evidence of the Medical Officer who has describe the injury sustained by the injured witness and submitted that even from the deposition of the Medical Officer the position of injury will demonstrate that the injured witness was in a position to clearly see the firing being done by the appellant. 12. Learned APP submitted that the medical evidence clearly indicates the injury sustained by the fire arm and from the scientific evidence of the FSL, the cartridge which was found during the course of investigation is clearly connected with the weapon which was carried by the appellant and fired during the commission of offence. 13. Learned APP has submitted that on the basis of findings given by the Sessions Court and submitted that the trial Court has assigned cogent reasons with regard to his conclusive finding that the firing was made by the appellant by using his rifle and the injury sustained by the injured witness out of such firing. He has also submitted that the trial Court has assigned reasons for conviction under Section 307 by examining the provisions of law, particularly, though, there was no intention to commit a murder of any of the person still the appellant being a Police Officer, was very much aware about the consequences of firing from the service rifle, and therefore, the conviction is only for the offence under Section 307 and the punishment inflicted is of 5 years. 14. Having considered the rival submissions of the parties and having perused the documents on record. The incident took place on 15.02.1990 at 11.30 p.m. on national highway No.8 at a place identified as New Shere Punjab Hotel, where the appellant and the injured witness both being Police Constable, arrived at the pan shop near the hotel and the appellant entered into verbal altercation with the shop owner, and thereafter, the injured witness intervened to separate them, however, when the injured witness took the appellant away from the shop, the injured witness returned to the shop to take the footwear of the appellant which he had left at near the shop and at that time the firing took place by the appellant causing injury to the injured witness. Vide Exhibit-6 charge was framed. Vide Exhibit-6 charge was framed. The gist of which would read as under:- “On 15-2- 90, the accused and the Injured Witness Dhanabhai Himmatsinh, both were on duty as Police Constable for patrolling at Shankracharya Nagar on National Highway No.8. During the period at 11.30 hours at night, you had fired one round from the government gun which you possessed in order to kill Illiyaskhan Husseinkhan Pathan knowingly and willingly, at New Shere Punjab Hotel located near Ratanpur on National Highway No.8. Despite having knowledge that if such round is fired, death of Illiyakhan Husseinkhan or someone else may be caused, you fired the round and attempted to cause death of Illiyaskhan Husseinkhan Pathan. Moreover, despite knowing the fact that if bullet is fired from the gun, death of the person standing opposite may be caused, you had fired a bullet knowingly, willingly and voluntarily from the government gun that you possessed. Hence, as the bullet hit Witness Dhanabhai Himmatsinh, he sustained grievous injuries and thereafter, you tried to kill Dhanabhai Himmatbhai using another bullet.” 15. The investigation was initiated when the owner of the pan shop Illias Husen registered an FIR. Said Illias Husen is examined as P.W.2 at Exhibit-18. This witness has deposed to the extent that the appellant and the injured witness who were in Police uniform both were carrying fire arms arrived at his shop and at the relevant time, the appellant asked for Bidi and while paying for the same on account of lack of change a dispute arose and at that time several drivers of the truck parked nearby were also present and during that time it was the appellant who fired from the fire arm and the fire arm bullet caught Dhanabahi who was standing besides his cabin because of the injury he fell down and this witness came to the rescue of the injured witness. 16. It appears that as this witness did not depose as per the statement recorded during the course of investigation, particularly, about he is seeing the appellant firing from his service rifle. This witness was declared as hostile upon the request being made by the Public Prosecutor. 16. It appears that as this witness did not depose as per the statement recorded during the course of investigation, particularly, about he is seeing the appellant firing from his service rifle. This witness was declared as hostile upon the request being made by the Public Prosecutor. The Court finds that to the extent of the incident having taken place near his cabin and that the firing having taken place is also deposed by this witness, and therefore, the presence of the appellant, the injured witness and the factum of firing is supported by this witness. 17. The prosecution has, thereafter, relied upon the evidence of P.W.8 Dhanabhai Himmatbhai, vide Exhibit-60. This is a witness who is an injured eye witness. This witness is colleague of the appellant, and therefore, there would not be any reason to falsely implicate the appellant even from the deposition of this witness, particularly, the cross-examination, nothing is coming out on record that the defence has set up a case of false implication for any other reason. 18. The Court has taken into consideration the deposition of this injured witness and the relevant portion of his deposition would clearly indicate that the appellant and P.W.8 were on duty and were assigned for patrolling the portion of the national highway and he has deposed that they had visited the relative of the appellant at Ratanpur and were returning, on their return, they stopped at the lodge, where the appellant introduced this witness to other persons. 19. This witness has deposed that while they were at the lodge, the appellant came to the pan shop and took the Bidi from the shop and lighted the match at that time there was a quarrel with regard to the payment for the Bidi. This witness has also indicated that prior to going to the pan shop the appellant went on the back side of the lodge for some time and return back to the pan shop, and according to this witness, the appellant had consumed alcohol, and therefore, there was a commotion between the pan shop owner and the appellant and this witness tried to separate them from the fight by taking the appellant away from the shop towards the highway, and thereafter, when the appellant indicated that his footwear was lying near the pan shop, this witness went back to the pan shop for bringing back the footwear. It is at that stage, it is deposed that the appellant came from behind and immediately fired from his service rifle because of which the bullet caught the injured witness in the middle part of torso. The injured eye witness has, therefore, unequivocally deposed that it was the appellant who had fired from his fire arm from behind and causing injury. The submissions on behalf of the appellant that the position of the injured eye witness was such that his full back was against the appellant, and therefore, the injured eye witness could not have seen firing taking place by the appellant. In this regard, it will be pertinent to observe from the evidence of the Medical Officer (P.W.10) Dr. Sureshbhai Manibhai Nayak, Exhibit-66 who has described the injuries from its entry-wound and exit-wound and the position from where the firing has taken place and the position of the injured witness when the bullet pierced the body of the injured eye witness. In the cross-examination, the Medical Officer has indicated that the bullet had pierced on the right hand side of the back and exited from the left hand side of the back, and therefore, the injured eye witness would be standing at an angle partly facing the appellant when the firing took place, and therefore, the submission that the injured eye witness was having his back against the appellant cannot be accepted. 20. The Court has taken into consideration the cross-examination of the injured eye witness and though several questions were put with regard to the initiation of altercation between the informant and the appellant to create some contradictions, yet, with regard to the version of this witness about the incident taking place on account of verbal altercation because of payment towards purchase of Bidi/Bristol has remained intact. The submission of learned advocate for the appellant regarding the contradiction of whether the article purchased was Bidi/Bristol cannot be considered to be a contradiction to the extent of affecting the version of this witness in so far as the incident of firing and receiving of injury is concerned in any manner. 21. Even from the cross-examination of this witness though an attempt was made to bring out a theory of false implication. However, this witness has stood his ground in the aforesaid regard. 21. Even from the cross-examination of this witness though an attempt was made to bring out a theory of false implication. However, this witness has stood his ground in the aforesaid regard. In the opinion of the Court, therefore, the P.W.-8 being an injured eye witness, his evidence will have to be given utmost credibility, particularly, in view of the decision of this Court reported in AIR 2023 SC 1736 in the case of Balu Sudam Khalde and another v. State of Maharashtra, wherein this Court has emphasized upon the weightage being given to a witness who is also an injured eye witness. Paragraph No.26 of the aforesaid decision reads as under:- “26. When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind: (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.” 22. The Court has, thereafter, taken into consideration the dying declaration, Exhibit-65 executed and exhibited through P.W.-9, the Executive Magistrate Lakshmanbhai Parkhi at Exhibit-63. This witness has deposed in his evidence-in-chief. Not only with regard to the procedure adopted for preceding to record the dying declaration but has also in his evidence-in-chief given out the content of the dying declaration. The Court has, thereafter, taken into consideration the dying declaration, Exhibit-65 executed and exhibited through P.W.-9, the Executive Magistrate Lakshmanbhai Parkhi at Exhibit-63. This witness has deposed in his evidence-in-chief. Not only with regard to the procedure adopted for preceding to record the dying declaration but has also in his evidence-in-chief given out the content of the dying declaration. It is the submission of learned advocate for the appellant that an error is committed in relying upon the dying declaration to great extent as the injured witness having survived such dying declaration would be reduced to only a previous statement and that even from the deposition of the injured eye witness himself. It is coming out on record that he was not in a disposing capacity for recording the dying declaration. It would be therefore pertinent to consider the evidence of P.W.-9 as well as Exhibit-65, wherein, the witness has clearly given out the version of the incident which is in-consonance with the case of the prosecution. Not only that, before the dying declaration was recorded, the Exhibit-65 contains the remarks of the attending Doctor with regard to the deposing capacity and conscious states of mind of the injured witness, and therefore, in the opinion of Court, Exhibit-65 having been duly proved by the witness who has recorded dying declaration and that the content of such dying declaration also have been found place in the evidence-in-chief. The Court is inclined to accept this as an admissible peace of evidence which cannot be used for the purpose of corroboration of the ocular version of the injured eye witness. 23. The Court has, thereafter, taken into consideration the evidence of the Medical Officer, Dr. Suresh Nayak P.W. 10 Exhibit-66. This witness has indicated the injury received by the fire arm. He has described the treatment given, entry and exit-wound caused by the fire arm. This witness was subjected to cross-examination to the extent of ascertaining the range from which the firing took place and also with regard to the direction from which the firing took place so as to support the defence that the firing took place when the injured witness had his back facing to the appellant. This witness was subjected to cross-examination to the extent of ascertaining the range from which the firing took place and also with regard to the direction from which the firing took place so as to support the defence that the firing took place when the injured witness had his back facing to the appellant. However, in paragraph No.4 of the cross-examination, this witness has described the entry-wound and exit-wound in such a manner so that it would indicate that the back of the injured witness was not facing the appellant and the entry-wound was on the left hand side from the back to indicate that the injured eye witness was at the relevant time standing in an angular position so that partly he was able to witness the incident of firing. This witness has, therefore, corroborated the version of the injured eye witness who has in his deposition attributed the firing to the appellant and none else. 24. Learned advocate for the appellant has argued that the only reason why the trial Court has concluded that the firing has taken place by the appellant only on the version of the injured eye witness that at the time of firing, the appellant was not standing along-with him. In the opinion of the Court that the finding thus given by the trial Court is not merely on the presumption on account of the version given by the injured eye witness in the cross examination but an unequivocal deposition about attributing the firing to the appellant alone. 25. It would be pertinent to observe at this stage that the entire incident, presence of two rifles have come on record, but if the evidence of the injured eye witness is taken into consideration, it is clearly coming out that the injured eye witness was armed with K.P. No.392, No.410 (Muskat), (Refeming place of Panchnama) Exhibit-83 on land in one metal charger, there were four and in another there were five bullet,which is of 303, whereas the appellant was holding a rifle being 303 KP. No.206. 26. The Court has, thereafter, taken into consideration the FSL report the revanagi known at Exhibit-82 is attributing the fire arm, Exhibit-D to the appellant and the empty cartridge with Mark-E. The finally opinion of the FSL at page No.431. Which reads as under:- “Exh.-D : Is a 0.303” rifle. No.206. 26. The Court has, thereafter, taken into consideration the FSL report the revanagi known at Exhibit-82 is attributing the fire arm, Exhibit-D to the appellant and the empty cartridge with Mark-E. The finally opinion of the FSL at page No.431. Which reads as under:- “Exh.-D : Is a 0.303” rifle. Residues of fired ammunition lead Nitrite could be detected in the barrel washing (washing taken prior to the laboratory test firing) there by showing that Exh-D has been used for firing to its receipt in this laboratory, No opinion can be given regarding the time of firing. Two 0.303” rifle cartridges (from lab. Stock) were successfully test fired from Exh.-D in the laboratory and Exh-D was found in working condition. Exh.-E : Is a 0.303” K.F. cartridge case having indentation marks on percussion cap. Exh-E and test fired cartridge (from lab. Stock) tested on Exh-D were examined and compared under comparision microscope. The characteristic features of firing pin mark on Exh-E and that on test fired found similar there by showing that Exh-E has been fired from Exh-D.” 27. This opinion from the Senior Scientific Assistant of Forensic Science Laboratory is sufficient to conclude the cartridge found from the scene of incident is attributable to the fire arm Exhibit-D, and therefore, the prosecution has established the case of firing at the hands of the appellant by using his service rifle at Exhibit-D and the bullet fired carrying the empty cartridge at Exhibit-E. 28. In the opinion of the Court, the scientific evidence by the prosecution also corroborate the version of the injured eye witness, and therefore, in view of the reasonings given by the trial Court so also the reasons mentioned hereinabove the Court does not find any reason to interfere with the findings of the trial Court in the judgment and order dated 15.04.2004 passed in Sessions Case No.160 of 1990 by the Presiding Judge of the Fast Track Court, District – Kheda at Nadiad. 29. For the reasons recorded in the judgment dictated today, the Hon’ble Court has passed the following order: “In the result, the appeal fails and is dismissed. The judgment and order dated 15.04.2004 passed in Sessions Case No.160 of 1990 by the Presiding Judge of the Fast Track Court, District – Kheda at Nadiad, stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. The judgment and order dated 15.04.2004 passed in Sessions Case No.160 of 1990 by the Presiding Judge of the Fast Track Court, District – Kheda at Nadiad, stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. Record & Proceedings be sent back to the concerned Trial Court, forthwith.”