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2023 DIGILAW 693 (GUJ)

State Of Gujarat v. Raisingbhai Chaganbhai Dabhi

2023-04-27

A.Y.KOGJE, M.R.MENGDEY

body2023
JUDGMENT : A.Y. KOGJE, J. 1. When the Court has taken up the matter for hearing, the Court has taken into consideration the previous order as well as the fact that learned advocate Mr. M.J.Buddhbhatti has now expired and therefore, we allow his son Mr.J.M.Buddhbhatti, who seeks permission to appear in place of his father and represent the case of the respondents. It is also reported by him that respondent No.2 has now expired. Accordingly, present Appeal stands abated qua respondent No.2. 2. At the request of learned Advocate for both the sides, Criminal Appeal as well as Criminal Revision Application, both are taken up for joint hearing and disposal. 3. The Present Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, 1973, against the acquittal recorded by the judgment and order dated 10.05.1995 passed in Sessions Case No.291 of 1993 by the Additional Sessions Judge, Kheda at Nadiad. By the aforesaid judgment and order, the respondents-accused have been acquitted for the offences under Section-302, 307 read with Section 34 and 279 of the Indian Penal Code. 4. The Sessions case arises out of an incident which took place on 13- 09-1993 for which F.I.R. came to be registered by one Prakashchandra Ravishankar vide Exh-18, wherein it is alleged that while the informant was riding scooter with Sursingh (deceased), at that time, accused persons riding a tractor collided with scooter causing the informant as well as the deceased to fall down and thereafter, the accused; Raisingbhai Chaganbhai Dabhi with Dhariya, accused; Karansingh Dolatsingh Dabhi with pick-axe assaulted Sursingh causing him grievous injuries resulting in his death. 5. The reason behind this assault according to the informant was long standing dispute and quarrel between the families with regard to the right of way and the construction made by illegal encroachment. 6. Learned Additional Public Prosecutor has submitted that an error is committed in acquitting the accused, though it is the case of eye- witness and the Sessions Court has disregarded version of eyewitness; Jashubhai Kalubhai Dabhi at Exh-23. Though he has clearly deposed about the assault and animosity. It is submitted that merely because this witness is nephew of the deceased, cannot be reason to completely discard his evidence. 7. Though he has clearly deposed about the assault and animosity. It is submitted that merely because this witness is nephew of the deceased, cannot be reason to completely discard his evidence. 7. It is submitted that the evidence of this witness is not a stand alone evidence, but is corroborated by the medical evidence i.e. deposition of Dr. Ashok Jain at Exh-30, who has narrated nature of serious injuries received and that such injuries could be caused by use of Dhariya. It is submitted that other corroboration is received from the discovery panchnama by which the weapon like Dhariya and pick-axe were discovered and the same were found with bloodstain matching the blood-group of the deceased. 8. It is submitted that though investigation had taken place properly, there is no lapse in the investigation. Still, as if the panch-witnesses are not to be believed, the trial Court has not taken into consideration panchnama of discovery as a corroborative piece of evidence. 9. As against this, learned Advocate for the respondents has submitted that the discovery panchnama cannot be believed, as the same is joint discovery attributed to all the accused. It is submitted that the informant, who even as per the case of the prosecution was accompanying the deceased at the time of incident, has turned hostile. Moreover, this witness does not mention to the presence of the eye-witness; Jashubhai Kalubhai Dabhi, but refers to the presence of two other persons; Bhurubhai and Bhavubhai, who had taken the injured witness and the deceased in their tractor for treatment. The prosecution has not examined this independent witnesses. It is submitted that for the aforesaid reason itself, witness; Jashubhai Kalubhai Dabhi appears to be got-up witness, though he is not witness at all to the incident. 10.Having head learned Advocates for the parties and having perused the documents on record, it appears that the Sessions Court has framed charge vide Exh-9, the gist of which is as under: “On 13/09/93, at 09:45 am, the complainant and the deceased Sursinh Malubhai Dabhi, was going to Tarapur on his scooter from the road of outskirt of village-Mahiyari, Taluka-Khambhat, District-Kheda. At that time, the accused persons were coming on their tractor towards village Mahiyari. The accused no.3 collided the tractor with the scooter of the complainant and made the complainant and deceased Sursinh fall on the side of the road. At that time, the accused persons were coming on their tractor towards village Mahiyari. The accused no.3 collided the tractor with the scooter of the complainant and made the complainant and deceased Sursinh fall on the side of the road. Accused no.1, with the scythe, accused no.2, with the shovel and accused no.3 with the axe, hit the deceased Sursinh on his head, hands, legs and various other parts of the body, intentionally caused injuries to the deceased which were enough to cause death of the deceased in the ordinary course of nature and caused death of the deceased, in collusion with one another and committed offence punishable under section-302, read with section-34 of the I.P.C. Moreover, charge is framed against all the accused persons that on the aforesaid date and time, accused no.3 collided the tractor with the scooter of the complainant, with intention to cause death of the complainant, deliberately and made the complainant fall and caused injuries on various parts of the body of the complainant. The accused persons would have been held guilty for murder if the complainant had died due to the injuries caused by the acts of the accused persons. Thus, the accused persons committed offence punishable under section-307 of the I.P.C. Thus, charge is framed against the accused persons collided the tractor with the scooter of the complainant Sursinh, with intention to cause death of the complainant, deliberately and made the complainant fall and caused lethal injuries on various parts of the body of the complainant by the weapons carried by the accused persons. Thus, the accused persons, in collusion with one another, committed offence punishable under section-34 of the I.P.C.” 11.Much emphasis is lead on the evidence of Jashubhai Kalubhai Dabhi vide Exh-23 that he was the person, who was witness of collusion of vehicle and thereafter, assault with the use of weapons. It would be pertinent to point out that the informant; Prakashchandra Ravishankar vide Exh-18 was riding scooter with the deceased as his pillion and he has clearly indicated that their scooter collided with unknown tractor, wherein 6 to 7 unknown persons were seated and on account of the collusion, both the deceased and the informant had fell down. This witness also states that when he regains consciousness, he was taken to Doctor for the treatment by Bhurubhai and Bhavubhai. However, witness does not mention presence of Jashubhai Kalubhai Dabhi. This witness also states that when he regains consciousness, he was taken to Doctor for the treatment by Bhurubhai and Bhavubhai. However, witness does not mention presence of Jashubhai Kalubhai Dabhi. Moreover, evidence of this witness; Jashubhai Kalubhai Dabhi vide Exh-23, if looked closely would indicate that Complaint of the complainant Prakashchandra was recorded in Tarapur Hospital, and at that time he was present. Also it is found from his evidence that his reply was recorded by the I.O.- Mr. Vataliya – P.S.I. in the hospital on the day of incident before 12:00 noon. He has clearly denied the fact that such has not happened that his reply has been recorded twice. Also he has clearly mentioned that his reply (of I.O.) has not been recorded after the last rituals (cremation) of the deceased Sursinh. Whereas, in his statement before the police, he has stated that "after the dead body of my uncle Sursinh was handed over to me, i had performed its last rituals (cremation)." The said statement of the witness have been reiterated by the evidence of Investigating Officer – Mr. Vataliya. As per the say of witness, the Inquest Panchnama of the deceased was drawn at the place of incident and he was present at the time when the Postmortem was done. If the Postmortem is done in presence of this witness and if the possession of the dead body of deceased has been handed over to him and thereafter the fact regarding the last rituals of the dead body of the deceased has been stated in the reply before the police, then is such circumstances, it could be said that the reply of this witness was recorded after the last rituals of the dead body of deceased. His two replies are not recorded in this case. Hence, the fact that his reply was recorded in the Hospital is not the acceptable fact. This witness has also stated in his deposition that he had told the police to lodge complaint of Prakash chandra as well to record my (his) reply. Prakashchandra was dictating the complaint and he was standing besides him and he was listening what was stated by him (Prakash). 12.Further as per the evidence of witness Khumansinh Vakhatsinh vide exhibit-26, he and his elder brother went to their farm. Their farm is situated at Mahiyari – Chikhaliya road. Prakashchandra was dictating the complaint and he was standing besides him and he was listening what was stated by him (Prakash). 12.Further as per the evidence of witness Khumansinh Vakhatsinh vide exhibit-26, he and his elder brother went to their farm. Their farm is situated at Mahiyari – Chikhaliya road. At that time, Ganeshbhai shouted that, run something has happened. As per the statement of witness – Khumansinh, at that time he saw a Tractor going on the road, the present accused persons were there on that Tractor and the Tractor was coming from the side of Mahiyari and was going towards Chikhaliya. As per his statement, at the time when he went on road, Sursinh was lying upon the road, and it was seen that the blows were beaten on his head, hands and legs. This witness went on the road near Sursinh at the place of incident. He does not states that he had seen the Complainant Prakashchandra or witness Jasubhai at that time. This witness Khumansinh has also stated vide exhibit-26 that at the time when he and his brother were there in the farm, at that time – Vijay, son of the deceased Sursinh came running and crying. There are many controversial statements in the evidence of this witness, which are important. As per the statement of this witness, after he had heard the shouting of Ganeshbhai and seeing the Tractor, he went to his house and his brother also went to home. In that circumstances, this witness does not states the facts which are helpful to the prosecution. This witness has not seen the accused persons assaulting upon the deceased, but such fact has been found from his evidence that the accused persons were going in the Tractor. But on looking to the entire evidence of this witness, this fact is also found to be said as suspicious. 13.Even from the medical evidence, if the same is compared with the evidence of Dr. Ashok Jain vide Exh-30 and the Postmortem report vide Exh-31, then injuries, which are mentioned, are not possible by Muddamal Article No.20 (Pavda) and Muddamal Article No.21 (pick-axe). Fatal injuries are injury no.1, 2 and 3 of Column No.17 and these injuries, as opinion given by the Doctor, could not have been caused by the aforesaid two Muddamal articles. Ashok Jain vide Exh-30 and the Postmortem report vide Exh-31, then injuries, which are mentioned, are not possible by Muddamal Article No.20 (Pavda) and Muddamal Article No.21 (pick-axe). Fatal injuries are injury no.1, 2 and 3 of Column No.17 and these injuries, as opinion given by the Doctor, could not have been caused by the aforesaid two Muddamal articles. Therefore, those accused who are attributed with Pavda and pick-axe, have no role to play and the role attributed by the prosecution, is not supported by the medical evidence and therefore, rightly benefit of doubt appears to have been given to the accused persons. Similarly, with regard to the Muddamal article; Dhariya, though the Doctor has opined that injury No.4, 5, 6 and 8 to 13 and 27 to 31 can be caused by weapon Dhariya. However, fatal injuries no.1 to 3, Medical Officer has opined would not be caused by Dhariya. Therefore, suspicion is created with regard to usage of weapon; Dhariya for causing such injury. 14.The Court also finds that the Prosecution has examined witness Mohammad Ibrahim vide Exh-34. He is a witness of the panchnama drawn regarding search and seizure of the muddamal weapons discovered and recovered by the accused persons. As per the averment of this witness, he and other panch Nameed Muktyar Hussein Mamdubhai were called to Khambhat Rural Police Station to act panchas. Interrogation of the accused persons was done and he accompanied the accused persons to Chokhaliya village in a government jeep. The vehicle was stopped at the behest of the accused persons. They walked in front and opened the gate located on the way and went ahead and entered into an unused house located adjacent to a pukka house. Muddamal scythe, pickaxe and spade were brought out from the wheat bran stored in the second room of the unused house. It is not found that this witness acted as a panch in some other case also. Moreover, he has not deposed before the Court in any other case. However, as per the version of this witness, the gate of the place where they had gone, did not have any lock. In addition, the unused house was also not locked and the accused persons brought out and produced the muddamal weapons from the open un-used house. The accused persons are farmers and hence, such muddamal weapons, being agricultural equipments, can be in their possession. In addition, the unused house was also not locked and the accused persons brought out and produced the muddamal weapons from the open un-used house. The accused persons are farmers and hence, such muddamal weapons, being agricultural equipments, can be in their possession. Hence, the evidence of muddamal weapons seized by discovery and recovery, cannot be the sole evidence to prove the case of the prosecution. However, as per the FSL report at Exh.54 and Serological Report at Exh.55 pertaining to these muddamal weapons, presence of blood was found on the handle of scythe, but the group of blood could not be ascertained. Whereas, it is mentioned that presence of blood of ‘A’ group was found on the blade of scythe. In the same way, presence of human blood of ‘A’ group was found on spade and pickaxe. As per the report of FSL, the presence of blood has been found on weapons and as per the evidence of Medical Officer Ashnekkumar Jain at Exh.30, it is not possible to cause, any of the injuries sustained by the deceased using the muddamal spade and pickaxe. Under such circumstances, if it is not possible to cause injuries sustained by the deceased using the muddamal weapon spade and pickaxe, it is also not possible that as the deceased was assaulted using these weapons blood may have got stuck on spade and pickaxe. In this way, as the evidence of FSL regarding presence of blood having been found on muddamal weapon pickaxe and spade, is contradictory to the evidence of Medical Officer Dr. Jain at Exh.30, the fact of the Prosecution is doubtful that the accused no. 2 and 3 caused injuries using spade and pickaxe respectively. 15.The Court also finds that Evidence at Exhibit-36 is produced. That witness is the panch witness of the panchnama at Exhibit-37 regarding the tractor found near the hut of the accused No.2 at village Chokhaliya. As per the evidence of this witness, panchnama was drawn regarding the tractor No.8304 parked near the hut of the accused No.2. Yellow color stuck on the bumper in front of the tractor twisted in the right side was extracted and collected as sample. Moreover, the blood drops smeared on the tractor were wiped with the cotton balls and were collected as sample. As the blood found on the tractor was got examined by the F.S.L., blood was found there. Yellow color stuck on the bumper in front of the tractor twisted in the right side was extracted and collected as sample. Moreover, the blood drops smeared on the tractor were wiped with the cotton balls and were collected as sample. As the blood found on the tractor was got examined by the F.S.L., blood was found there. But, the blood group of the same was not determined. In these circumstances, the evidence of the blood found on that tractor can not be beneficial to the prosecution further. The sample of the sky-blue color extracted from the scooter lying at the place of offense is matched with the sky-blue particles taken from the tractor and the particles of the green color collected from the scooter are matched with the green color particles collected from the tractor. Upon seeing the details mentioned in the aforesaid analysis report of the F.S.L. at Exhibit- 56, the fact was found that the color of the scooter was smeared on the tractor and color of the tractor was smeared on the scooter. The fact that, color of the tractor and scooter was smeared on one another is possible because as per the case of the prosecution, the tractor and the scooter collided, but, color collected from the tractor of the accused No.2 and color particles collected from the scooter found at the place of offense were matched. This fact can not be considered sufficient to prove the case of the prosecution. Because, the fact is also found from the evidence of the witnesses that, accused No.1 and 2 i.e both the brothers have same color Ford tractor and it can not be said that, the tractor of the accused No.2 collided with the tractor of the complainant, only on the basis of the fact that, color particles from the tractor were matched. 16. The Court has perused the impugned judgment and order and finds that the trial Court has arrived at conclusion that it is the alleged by the Prosecution that when the complainant Prakashchandra and deceased Sursinh were riding on a scooter, the accused came from the front on a tractor and they intentionally collided their tractor with complainant’s scooter. In support of the said allegations of the prosecution, the evidence of the witness Prakashchandra has been produced vide Exhibit-8. He has not corroborated the case of the prosecution. In support of the said allegations of the prosecution, the evidence of the witness Prakashchandra has been produced vide Exhibit-8. He has not corroborated the case of the prosecution. He has denied the fact that the accused came on a tractor and collided it with complainant’s scooter. As per his statement, seven to eight persons were sitting in the tractor, which collided with his scooter and he sustained injuries on his head, hand and leg. The evidence of the said complainant fails the case of the prosecution. The evidence to the effect that the witness Jalubhai at Exhibit-23 had not seen the scooter and tractor colliding with each other and while discussing the issue No.2, his evidence appears to be doubtful. Under these circumstances, from the evidence of complainant and the eye witness, it cannot be believed to be proved undoubtedly that the accused No.3 Karansinh having common intention with accused No.1-2 had hit the complainant’s scooter with an intention to kill the complainant. No other witnesses except the said two witnesses have seen tractor and scooter colliding. Witness Khumansinh at Exhibit-26 has merely seen the accused going on tractor and he has not seen tractor and scooter colliding with each other. If the intention of the accused was to kill the complainant and deceased Sursinh by colliding the tractor, the accused would have killed the complainant and deceased Sursinh by rushing the tractor on them even after they fell down, however nothing of this sort has happened. If the intention of the accused was to kill the deceased Sursinh, he did not need to cause injury to the deceased Sursinh with weapons after getting down from the tractor. However, the fact of causing injuries to the accused in this manner is not proved beyond doubt. 17.This Court while accepting the reasoning given by the Sessions Court and so also the separate reasoning given herein above, the Court is not inclined to interfere with the acquittal recorded. 18. In the result, the appeal fails and is dismissed. The judgment and order dated 10.05.1995 passed in Sessions Case No.291 of 1993 by the Additional Sessions Judge, Kheda at Nadiad stands confirmed. Bail and bail bonds of the accused, if any, stand discharged. R & P be sent back to the concerned Trial Court. 19. 18. In the result, the appeal fails and is dismissed. The judgment and order dated 10.05.1995 passed in Sessions Case No.291 of 1993 by the Additional Sessions Judge, Kheda at Nadiad stands confirmed. Bail and bail bonds of the accused, if any, stand discharged. R & P be sent back to the concerned Trial Court. 19. In view of the reasoning assigned in the Criminal Appeal, Criminal Revision Application No. 288 of 1995 also fails and is dismissed.