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2023 DIGILAW 484 (GUJ)

State of Gujarat v. Lalabhai Savabhai Koli

2023-03-20

A.Y.KOGJE, M.R.MENGDEY

body2023
JUDGMENT : A.Y. KOGJE, J. 1. The present appeal is preferred by the State against the judgment and order of acquittal dated 27.12.1995 passed in Sessions Case No.20 of 1993 by the Additional Sessions Judge, Amreli. By the impugned judgment and order, the respondent-accused were acquitted of the offences under Sections 302, 323, 324 & 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. 2. The offence arose out of an FIR registered in connection with an incident which apparently occurred on account of the alleged assault by the respondent-accused on account of dispute of removal of garbage. 3. It appears that the FIR came to be registered in connection with an incident dated 03.12.1992, wherein it is alleged that 6(six) persons were assaulted by using farm instrument (Khampali) & sticks of which the respondent-accused Lalabhai Savabhai Koli was attributed with Khapli and assault on the deceased – Rajiben. It would be pertinent to note that said Lalabhai Savabhai Koli has expired pending the appeal and accordingly, vide order dated 29.09.2022, the appeal qua him had abated. Apart from Lalabhai Savabhai Koli, 3 (Three) other accused were attributed with sticks and had inflicted injuries on the other injured witnesses. 4. The charge came to be framed vide Exh.1, wherein the respondents were charged for the offence under Sections 323, 324, 302, 504 r/w 114 of the Indian Penal Code. On account of assault being carried out by the farm instrument (Khampali), the charge of Section 135 of the Bombay Police Act also framed. 5. The gist of the charge indicates that on 03.12.1992, at about 20.00 hours, at Village: Harmadiya, Tal: Kodinar, Dist:Amreli, near residential area of both the complainant as well as accused with a common intention carried out an assault by using khapali & sticks. The accused no.1 (since deceased) has been attributed to assault the deceased with khapali on vital part of the body and respondent nos.2 to 4 were attributed with assault by stick on head as well as torso & legs of the injured witnesses. Such assault was made indiscriminately jointly upon the deceased as well as the other witnesses. 6. The accused no.1 (since deceased) has been attributed to assault the deceased with khapali on vital part of the body and respondent nos.2 to 4 were attributed with assault by stick on head as well as torso & legs of the injured witnesses. Such assault was made indiscriminately jointly upon the deceased as well as the other witnesses. 6. Learned APP has taken this Court through the evidence of the Doctor, who was examined as P.W.1 at Exh.12, who has given in detail the nature of injuries sustained by the deceased as well as injuries sustained by 5 (five) other persons viz. Benaben Govindbhai, Chinabhai & Chhanabhai, Hamabhai Rambhai (informant), Dhirubhai Hamabhai and Chinabhai Hamabhai. From the evidence of 6 witnesses clearly the cause of death is attributed to the assault carried out upon the deceased-Rajiben and in his evidence has also stated that the nature of injuries sustained by the deceased could be caused by using muddamal article - farm instrument (Khampali). The specific injury which turned out to be fatal was Injury No.3 mentioned in his evidence in chief, which was clearly attributable to the aforesaid farm instrument (Khampali). 6.1 Learned APP, therefore, submitted that the prosecution was successful in establishing the death of deceased-Rajiben was on account of the assault and was homicidal death. 6.2 Learned APP has, thereafter, taken this Court to the evidence of Benaben Govindbhai, who is an injured eye witness examined as P.W.6 at Exh.31. It is submitted that upon reading the evidence in chief that the incident took place near their house, and therefore, her presence was natural and in fact, she was also assaulted by one of the accused – Babubhai Savabhai, who caused injury on her thigh by inflicting stick, and therefore, the evidence of this witness is credible enough. 6.3 Learned APP, thereafter, took this Court to the evidence of Ratanben Kalabhai, who was examined as P.W.7 at Exh.32, who also happens to be resident of that vicinity and had witnessed the incident. While reading the evidence in chief, it is submitted that clearly the manner in which the assault took place has been narrated by this witness and the same is identical to the evidence of other witnesses also. While reading the evidence in chief, it is submitted that clearly the manner in which the assault took place has been narrated by this witness and the same is identical to the evidence of other witnesses also. 6.4 Learned APP has also taken this Court through the cross-examination of this witness and would submit that in the cross-examination also, this witness has stood by the version she has given in the evidence in chief, and therefore, her version cannot be doubted in so far as the role attributed to the accused are concerned. 6.5 Learned APP has, thereafter, taken this Court to the evidence of Dhirubhai, who is examined as P.W.3 at Exh.25. This witness has supported the case of the prosecution by indicating that the cause for assault was the dispute between 2(two) families regarding the removal of the garbage, which was causing inconvenience to the family members of the deceased. It also indicates that on many times, this issue was previously raised not only before the family of the accused persons, but also with the authorities and when it was not being done at that stage when the witness Chhanabhai, elder brother of this witness confronted the accused person, the assault took place. According to the learned APP by this witness, the incident has also proved, and therefore, the Court ought to have appreciated the evidence of 3 (Three) witnesses out of which 2 (Two) witnesses are injured eye witnesses, and therefore, their version ought to have been given sufficient weightage. 6.6 Learned APP has, thereafter, submitted by taking this Court to the medical case papers including the post-mortem note not of the deceased-Rajiben. Exh.17 is the injury certificate of the deceased-Rajiben, who was initially examined by Medical Officer and the medical certificate reflects 4(Four) injuries received by Rajiben. The other medical evidence consist of the injury certificate issued by Medical Officer at Exhs.18, 19, 20 & 21 being respectively the injury certificates of Benaben Govindbhai, Dhirubhai Hamabhai and Chinabhai Ramabhai, respectively. It is submitted that all the injuries and the nature of injuries sustained would clearly indicate the use of sticks, and therefore, the role attributed by the injured eye witnesses and the medical certificates are able to establish the connection between the assault and the injuries. It is submitted that all the injuries and the nature of injuries sustained would clearly indicate the use of sticks, and therefore, the role attributed by the injured eye witnesses and the medical certificates are able to establish the connection between the assault and the injuries. It is, therefore, submitted that the acquittal recorded by the Sessions Court is not in inconsonance with the evidence, which was established by the prosecution on record. 7. As against this, learned advocate for the respondents-accused submitted that the closure look at the evidence would indicate that the the assault with the use of Khapali is attributed only to the Lalabhai Savabhai Koli and it is that weapon which has caused fatal injuries to the deceased. It is submitted that the evidence of each of the witness though they claimed to be an injured eye witness are inconsistent within themselves. He has drawn attention of the evidence of injured eye witness – Benaben Kalabhai (P.W.6) and submitted that the role attributed by this witness during the course of her deposition is to one Balubhai Savabhai Koli, whereas in the statement before the police during the course investigation, she has stated that assault upon her was carried out by Batukbhai. It is submitted that by necessary cross-examination of the Investigating Officer, such contradiction has been established, and therefore, the evidence of this witness though claiming to be an injured eye witness, would not be sufficient to convict the respondents-accused persons. Similarly, he has also drawn attention of this Court to the evidence of Ratanben, who was examined as P.W.7 at Exh.62 and has indicated that this witness though claims to be an eye witness has categorically excluded any role to accused no.4- Gohabhai @ Dudabhai Savabhai Koli and has stated in her deposition bystander. 7.1 Learned advocate has submitted that evidence of so called injured eye witnesses cannot be treated to be credible, as they were all related to the deceased-Rajiben closely, and therefore, had a motive to falsely implicate considering the root cause for which the dispute had taken place. However, considering the nature of incident, the prosecution ought to have examine independent eye witnesses. According to him, statements of the independent eye witness were also recorded during the course of investigation, however, during the course of trial, such witnesses have not supported the case of the prosecution. However, considering the nature of incident, the prosecution ought to have examine independent eye witnesses. According to him, statements of the independent eye witness were also recorded during the course of investigation, however, during the course of trial, such witnesses have not supported the case of the prosecution. He refers to evidence of one Ayub Ababhai, who is examined as P.W.9 at Exh.34 and submitted that this independent witness has not supported the case of the prosecution. 8. The Court has taken into consideration the submissions made by both the sides and the evidence on record. The case of the prosecution is based on an incident which took place on 03.12.1992 at 20.00 hours at Village:Harmadiya, Tal:Kodinar, Dist:Amreli, wherein the residential houses of accused persons as well as residential house of the informant Hamabhai and his family are located. It is the case of the prosecution that the incident took place on account of long standing dispute with regard to removal of garbage from the area where the complainant side time and again had raised the issue with the family of the accused persons as well as local authority for removal of garbage from the area by the accused side. As accused family was not responding to the request, and therefore, when the informant confronted the accused no.1-Lalabhai Savabhai Koli for not removing the garbage from the area, at that time, loosing the temper Lalabhai Savabhai Koli immediately assaulted and rest of the accused persons joined Lalabhai Savabhai Koli in carrying out the assault. In the meantime, Rajiben, who was in the vicinity immediately came to rescue and to interfere with the asasult, was assaulted by Lalabhai Savabhai Koli with the use of Khapali on the vital part of the body. It is alleged that rest of the accused persons also carried out the assault with the use of sticks and assaulted the other witnesses viz. Chino, Dhiru and Benaben, who are the family members of the informant. Apparently, on account of the serious injuries sustained on the vital part of the body by Rajiben, she was initially taken to the local hospital where she was examined and referred to for further treatment, but while on way, she succumbed to the injuries. It is in this set of facts that the FIR came to be registered. 9. Apparently, on account of the serious injuries sustained on the vital part of the body by Rajiben, she was initially taken to the local hospital where she was examined and referred to for further treatment, but while on way, she succumbed to the injuries. It is in this set of facts that the FIR came to be registered. 9. The Court has taken into consideration the evidence of Dr.Kiritkumar Mohanlal, who is examined as P.W.1 at Exh.11. He has examined deceased-Rajiben and has stated that she had received 4(Four) injuries out of which Injury No.3 was the fatal injury and could be caused by the use of khapali. The other injured person examined by this witness was Benaben, who was shown to have received injury on the right thigh, Hamabhai Rambhai, who has received 2 (Two) injuries, Dhirubhai Hamabhai, who has received 4(Four) injuries and Chinabhai Hamabhai, who has received 4(four) injuries. According to this witness, all the injuries were causing by the assault of the sticks. This witness has deposed with regard to the fatal injury no.3 received by the deceased-Rajiben and has stated that injury no.3 is an injury, which is sufficient to cause the death considering the seriousness of such injury, and therefore, this witness has established the case of the prosecution with regard to the death of Rajiben. This witness has also established injuries received by the injured witnesses and the usage of stick in causing such injuries. 10. The Court has taken into consideration the evidence of Hareshbhai Dilsukhbhai (P.W.2 at Exh.22), who is the Doctor, who performed the post-mortem on the body of deceased- Rajiben. The post-mortem report is exhibited vide Exh.23 and would indicate the nature of injuries received and the cause of death. This witness would establish the death of the deceased- Rajiben to be a homicidal death. 11. The Court has, thereafter, considered the evidence of eyewitnesses viz. P.W.3 Dhirubhai Hamabhai, P.W.4 Hamabhai Rambhai, P.W.5 Chinabhai @ Chhanabhai Hamabhai. All these witnesses have received superficial injuries from the assault, and therefore, considering the evidence given by these witnesses, the incident appears to have been established by the prosecution. The incident which has resulted into the death of her mother and injuries received by these witnesses is therefore, established by the prosecution on the basis of the oral evidence of these witnesses. The incident which has resulted into the death of her mother and injuries received by these witnesses is therefore, established by the prosecution on the basis of the oral evidence of these witnesses. The question, therefore, now arises is the appreciation of the evidence of these witnesses in so far as attributing of roles to each of the accused person. 12. The medical evidence reflecting the injuries received by the deceased at Exh.17 is indicating the use of sharp edge cutting instrument like the weapon which is recovered during the course of investigation and attributed to Lalabhai Savabhai Koli – accused no.1 (since deceased). The evidence of (P.W.6) Benaben Govindbhai would indicate that the Lalabhai Savabhai Koli is the person, who had inflicted 2 to 3 blows with khapali upon Rajiben. Similarly, the witness Ratanben has also deposed that it was Lalbhai Savabhai Koli, who had assaulted by using khapali upon Rajiben. The other witness are also deposing in the same manner, thereby, indicating that the assault by using khapali was attributed only to Lalabhai Savabhai Koli. The injuries received by deceased-Rajiben does not indicate usage of any other weapon except of khapali, and therefore, the role attributed by the prosecution to the respondent-accused other than Lalabhai Savabhai Koli in inflicting the injuries on deceased-Rajiben cannot be accepted. 13. In so far as the assault upon other injured witnesses, it would be pertinent to refer to the evidence of Benaben Govindbhai (P.W.6, Exh.31), wherein in the evidence in chief, this witness has indicated the manner in which she had remained present when the incident took place and in fact, was also assaulted by accused-Balubhai Savabhai with stick on her thigh. It is pertinent to observe that in the cross-examination and this witness, she was contradicted by the previous statement before the police during the course of investigation, wherein recorded the assault on this witness was made by another accused – Batukbhai Savabhai by using stick. The contradiction was successfully proved by the evidence of Investigating Officer Mr.Laxmidas Jerajbhai (P.W.13, Exh.43), who has in the cross-examination indicated that the statement recorded of the witness Benaben indicate that the assault was carried out by Batukbhai Savabhai with stick upon this witness, whereas it has not been stated in such statement that the assault was carried out by Balubhai Savabhai using stick. To that extent, the credibility of this witness is damaged, as this witness, who has not deposed actually with regard to the assault carried out on herself, cannot be considered to be an accurate witness for attributing the role of assault attributed to the respondents-accused. 14. The Court has taken into consideration the evidence of Ratanben (P.W.7, Exh.32), wherein this witness does indicate about the incident having taken place, however, has clearly indicated that 2 (Two) of the respondents-accused viz. Vihabhai @ Dohabhai and other persons were not participating in the assault and only bystander. When such evidence has come on record at the hands of the prosecution witness, who claims to be an eye-witness, the theory of the prosecution of attributing individual role is clearly in doubt. 15. Considering the manner in which the incident took place and the place of time on which the incident took place, there are bound to be other eye witnesses. The prosecution has failed in examining such eye witness. 16. It would be pertinent to refer to the defence taken by the respondents-accused regarding the issue of one of the witness that the witness had consumed liquor in heavy quantity, and therefore, there was commotion which resulted into stone pelting. This issue with regard to consumption of liquor and stone pelting is coming out in the evidence by the prosecution viz. the evidence of Hussainbhai Kalubhai (P.W.8, Exh.33), who appears to have been examined as an independent witness. However, this witness has been declared hostile, wherein in examination in chief, he has referred to an incident where Chinabhai @ Chhanabhai (P.W.5, Exh.30) was in heavily drunk condition and there was commotion where stone pelting had taken place. 17. It is pertinent to observe that the prosecution had examined a panch witness, who has not supported the case of the prosecution. Further, P.W.9 Exh.34 is the panch-witness – Ayubbhai Ababhai, who was the panch witness of the place of scene of offence and in his deposition, he has indicated that there were stones stained with blood and were recovered from scene of offence. The F.S.L. report, which is produced at Exh.15 and the conclusion of the F.S.L. would indicate the presence of stained of blood on Khapali as well as on 2(two) stones, which are recovered under the panchanama referred to herein above. The F.S.L. report, which is produced at Exh.15 and the conclusion of the F.S.L. would indicate the presence of stained of blood on Khapali as well as on 2(two) stones, which are recovered under the panchanama referred to herein above. The blood group on both the Khapali as well as on the stones are matching, and therefore, defence was able to create a doubt in the prosecution theory that the injuries could be attributed to the incident of stone pelting. 18. Over and above, the Court has perused the judgment and order impugned, wherein the Sessions Court has attributed reasons with regard to recording of acquittal and has found that between the witnesses, who were present at the time of incident and claimed to be injured eye witnesses, there are strong discrepancies with regard to attribution of role of assault to each of the respondent-accused, and therefore, evidence of these witnesses were not accepted by the Sessions Court. 19. Over and above, the Court has also assigned reasons that each of the prosecution witness, who appears to have supported the case of prosecution, could not be treated as an independent witnesses, as they belonged to the same family as of the deceased and all of them had a common grievance of non-removal of garbage from the vicinity. The only witness, who was examined by the prosecution as an independent witness in the vicinity has turned hostile. 20. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471 , wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa & Ors. vs. State of Karnataka reported in (2007) 4 SCC 415 , the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court. 21. Considering the overall evidence of prosecution and the reasons assigned by the Sessions Court in rejecting such evidence, the Court does not find any reason to interfere with the impugned judgment and order. 22. In the result, the appeal fails and is dismissed. The judgment and order dated 27.12.1995 passed in Sessions Case No.20 of 1993 by the Additional Sessions Judge, Amreli stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.