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2024 DIGILAW 516 (GUJ)

Anuj @ Sonu Murlidhar Varma v. State Of Gujarat

2024-03-13

A.S.SUPEHIA, VIMAL K.VYAS

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JUDGMENT : A.S. SUPEHIA, J. 1. Since, both the appeals arise out of a common judgment and order, with the consent of the learned Advocates for the parties, the same are taken-up for hearing together and being disposed of by this common judgment. 2. The present appeals, filed under Section 374 of the Code of Criminal Procedure, 1973 (in brief, ‘the Code’), are emanating from the judgment and order dated 05.02.2014, passed by 2nd Additional Sessions Judge, Bharuch at Ankleshwar (‘trial Court’, hereinafter), in Sessions Case No.38 of 2013 (Old Sessions Case No.111 of 2018), whereby, the trial Court has convicted the appellants-original accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code, 1860 (in short, ‘IPC’) and sentenced them to undergo imprisonment for life and to pay fine of Rs.5,000/- and in case of default, to undergo further simple imprisonment for six months. 3. As per the charge, Exh.4, total four persons were arraigned as accused. However, the concerned trial Court acquitted the original accused No.3-Pravin Ramaashray Yadav and accused No.4- Dharmendra Bansidhar Shah, at the end of trial by giving them the benefit of doubt. However, the present appellants – original accused No.1-Anuj @ Sonu Murlidhar Varma and accused No.2– Guddu Shri Rajkumar Bharti came to be convicted. 4. The Charge, Exh.4, refers to the incident, wherein, it is stated that on 13.05.2011, at about 11:00 a.m., the original complainant– Sushilkumar Yoginder Nyahi and the deceased–Vinod Kuswaha when were going to Chandal Chowkdi, at that time the accused Nos.1 and 2 intercepted them and accused No.1-Anuj slapped the deceased - Vinod two-three times and on account of that the deceased - Vinod fell down, whereupon, accused No.1-Anuj strangulated the deceased - Vinod, whereas, accused No.2-Guddu inflicted kicks on the genitals of the deceased - Vinod. Thereafter, other two persons, i.e. accused Nos.3 and 4, caught hold of the deceased – Vinod and then accused No.1- Anuj and accused No.2 - Guddu inflicted kick and fist blows on the deceased - Vinod. Since, Vinod succumbed to the injuries sustained by him, the charge was framed for the offence punishable under Section 302 read with Section 114 of the IPC. 5. The trial Court, after appreciating the ocular as well as the documentary evidence, convicted and sentenced the accused Nos.1 and 2, as referred herein above. Hence, the present appeal. Since, Vinod succumbed to the injuries sustained by him, the charge was framed for the offence punishable under Section 302 read with Section 114 of the IPC. 5. The trial Court, after appreciating the ocular as well as the documentary evidence, convicted and sentenced the accused Nos.1 and 2, as referred herein above. Hence, the present appeal. 6. Learned Advocate, Mr.Patadia, appearing for the appellants – original accused Nos.1 and 2 has submitted that, in fact, the trial Court has fell in error by convicting them by placing reliance on the testimony of the so-called eyewitnesses. It was submitted that the version of the eye-witnesses is required to be ignored, since, they have not established themselves as reliable witnesses. 7. While inviting the attention of this Court to the evidence of the original complainant, i.e. Sushilkumar Yogendra - PW-17, Exh.-56, it was submitted that in his deposition before the trial Court, PW-17 has stated that accused No.1-Anuj first slapped the deceased - Vinod and thereafter, accused No.2 - Guddu inflicted kicks on the genitals of the deceased – Vinod. PW-17, Sushil, also named two other persons as accused, i.e. original accused No.3-Pravin and No.4-Dharmendra. The cause for such quarrel, which is mentioned in his deposition, is that one Murlidhar Varma, who happens to be the father of accused No.1-Anuj, lodged a complaint, for eve-teasing of his daughter, against Guddu, Satender, Munna and Sunil Kushwaha with Ankleshwar GIDC Police Station. PW-17, has admitted that no complaint was lodged against the deceased - Vinod or against him by Murlidhar Varma. It is, further, admitted by PW-17 that there was no animosity between the accused No.1-Anuj and the deceased - Vinod. 8. Learned Advocate, Mr.Patadia, submitted that PW-17, Sushilkumar is, in fact, not an eye-witness, since, in the cross-examination, it is elicited that when the accused assaulted the deceased - Vinod, he had fled the scene of offence. 9. It was submitted that the version of the offence narrated by Chandraprakash Dharmraj Kushwaha (PW-5), who was examined vide Exh.32, is totally different from the other eye-witnesses, wherein, PW-5 has deposed that the deceased was assaulted by belt by accused No.1- Anuj. In the cross-examination, it is elicited that there was no animosity between accused No.1-Anuj and the deceased - Vinod and that he does not know accused No.2-Guddu and thereby, he refused to identify accused No.2-Guddu before the trial Court. In the cross-examination, it is elicited that there was no animosity between accused No.1-Anuj and the deceased - Vinod and that he does not know accused No.2-Guddu and thereby, he refused to identify accused No.2-Guddu before the trial Court. It is, further, elicited from his cross-examination that when he arrived at the place of offence, many persons had gathered there and the assailants had already fled from there. It was submitted that there is major contradiction in the crossexamination of PW-5, with regard to his version, given in his examination-in-chief, that accused No.1-Anuj assaulted the deceased- Vinod with belt. It was, therefore, submitted that the evidence of PW-5 could not have been believed by the trial Court. 10. While referring to the evidence of PW-8, Anil Dharmraj Kushwaha, who was examined vide Exh.35, it was submitted that this witness has deposed that he had seen the occurrence. However, the I.O., i.e. PW-19, Raghuveer Shamjibhai Dabhi, in his cross-examination has stated that PW-8 is not an eye-witness of the incident, as there are major contradictions elicited from the deposition of this witness. 11. It was further submitted that accused Nos.3 and 4, who were identified by the so-called eye-witnesses, are, in fact, acquitted by the trial Court. 12. While referring to the evidence of Dr.Kamlesh Ganeshbhai Rathod (PW-9), who was examined at Exh.36, as well as the P.M. Note, Exh.37, it was submitted that as per the medical evidence, no injury was found on the genitals of the deceased - Vinod, whereas the cause of death, as per P.M. Note is due to injuries caused on liver, spleen and lungs. It was submitted that the medical evidence does not reconcile with the ocular version of the eye-witnesses. Thus, it was urged that the judgment and order of the trial Court convicting accused Nos.1 and 2 only on the basis of the evidence of the aforesaid eye-witnesses requires to be set aside, as those witnesses have failed to establish themselves as reliable witnesses. 13. Per contra, learned APP Mr.Raval, appearing for the respondent- State, at the outset, pointed out that the evidence of PW-9, Dr.Rathod, would clearly reveal that the seven to eight ribs of the deceased were fractured and the blood clots were found in his liver and spleen and that would suggest that the deceased - Vinod was brutally assaulted by the accused persons. 14. 14. It was submitted that, from the deposition of PW-17, Sushilkumar, it stands proved that the deceased - Vinod was last seen with the accused persons. It is contended by learned APP that when the evidence was pointed out to them, while recording their statement under Section 313 of the Code, the accused did not offer any explanation qua the same. 15. In support of the findings arrived at by the trial Court, learned APP refreshed the evidence of all three eye-witnesses, as discussed hereinabove and submitted that all the eye-witnesses have established themselves as the reliable witnesses and their evidence is of sterling quality and the trial Court has precisely believed the same. It was, therefore, urged that the present appeals may not be entertained and this Court may not interfere with the judgment and order passed by the trial Court. 16. We have heard the learned Advocates appearing for the respective parties to the lis. The evidence and the findings arrived at by the trial Court on such evidence is also considered by us. 17. As per the Charge, Exh.4, the case of the prosecution is that on 13.05.2011, at about 11:00 a.m., all the four accused assaulted the deceased - Vinod by kick and fist blows. It is alleged that the accused no.2 assaulted the deceased by kick blows on his genitals. The trial Court has acquitted accused No.3-Pravin and accused No.4- Dharmendra, whereas it has convicted accused No.1-Anuj and accused No.2-Guddu. 18. A perusal of the evidence reveals that the entire case of the prosecution hinges on the evidence of three witnesses, whom the prosecution has tried to project as the eye-witnesses of the incident viz. (1) the original complainant-Sushilkumar Yogendra (PW-17), who was examined vide Exh.56, (2) Chandraprakash Dharmraj Kushwaha (PW- 5), who was examined vide Exh.32, and (3) Anil Dharmraj Kushwaha- PW-8, who was examined vide Exh.35. 19. The original complainant, Sushilkumar Yogendra (PW-17), in his examination-in-chief has narrated the incident and has submitted that accused No.1-Anuj slapped the deceased - Vinod and accused No.2- Guddu inflicted kick blows on his genitals. The cause of the aforesaid incident, as stated in the FIR, is that one Murlidhar Varma, who happens to be father of accused No.1-Anuj, lodged a complaint with Ankleshwar GIDC Police Station, for eve-teasing of his daughter, against for persons, i.e. Guddu, Satender, Munna and Sunil Kushwaha. The cause of the aforesaid incident, as stated in the FIR, is that one Murlidhar Varma, who happens to be father of accused No.1-Anuj, lodged a complaint with Ankleshwar GIDC Police Station, for eve-teasing of his daughter, against for persons, i.e. Guddu, Satender, Munna and Sunil Kushwaha. The name of the deceased - Vinod is not found in the said FIR. PW-17, on the contrary, admitted that there was no animosity between accused No.1-Anuj and the deceased - Vinod and with him also. In the crossexamination, it is elicited and admitted by him that when the accused No.1-Anuj slapped the deceased - Vinod, he (i.e. PW.-17) fled from the place of incident. Thus, this witness has not actually seen, as to who assaulted the deceased - Vinod, except, witnessing accused No.1-Anuj slapping the deceased - Vinod. 20. So far as, the evidence of PW-5, Chandraprakash, Exh.32, is concerned, it discloses that this witness is not an eye-witness and that he did not depose on the lines of other eye-witnesses and had, in fact, stated that accused No.1-Anuj attacked the deceased - Vinod with a belt. In the cross-examination of PW-5, major contradictions are elicited and he admits that when he reached the place of offence, many persons had already gathered there and that the assailants had already fled from there. Thus, this witness also cannot be said to be an eyewitness. The contradictions elicited from the cross-examination of PW- 5, with regard to assault with the belt by accused No.1-Anuj, does not establish him as a reliable witness. 21. The trial Court has also placed reliance on the evidence of PW-8- Anil, Exh.35, to convict accused Nos.1 and 2. However, as per the evidence of I.O. i.e. PW-19, Raghuveer, in his investigation, PW-8 is not an eye-witness of the incident and the evidence of PW-8 is marred by the contradictions. Hence, the testimony of such a witness cannot be taken into consideration for convicting the accused persons for a grave offence, like murder. Although, as per P.M. report, as many as six injuries were found on the body of the deceased, however, as per the evidence of PW (Dr. Rathod) he did not notice any injury on the genitals of the deceased – Vinod, which casts doubt on the narration of the incident. 22. Although, as per P.M. report, as many as six injuries were found on the body of the deceased, however, as per the evidence of PW (Dr. Rathod) he did not notice any injury on the genitals of the deceased – Vinod, which casts doubt on the narration of the incident. 22. Insofar as, the submission made by the learned APP with regard to the aspect of last seen together and offering no explanation with regard to the same by the accused, while recording their statements under Section 313 of the Code, we find that the accused have offered an explanation that they had neither any animosity with the deceased- Vinod nor had they attacked him. It is well settled legal precedent that it is only after the prosecution discharges its duty of proving the case beyond reasonable doubt; the false explanation or non-explanation of the accused can be taken into consideration. The entire case of the prosecution is premised on the direct evidence of so-called eye- witnesses. Hence, the theory of last seen together cannot be invoked. None of them have established as reliable witnesses. The trial court has miserably failed to appreciate the evidence of these witnesses in true perspective. The conviction recorded by the trial court on tainted evidence of the eyewitness is perverse, hence the judgment and order of trial court calls for interference. 23. Accused No.3-Pravin and accused No. 4-Dharmendra have been acquitted by the trial Court, though, they are identified by PW-8-Anil. The overall appreciation of the evidence discloses that the accused are entitled to get the benefit of doubt, as the prosecution is unable to establish their complicity in the offence beyond reasonable doubt. 24. In the result, both the appeals are ALLOWED. The judgment and order dated 05.02.2014, passed by the learned 2nd Additional Sessions Judge, Bharuch at Ankleshwar, in Sessions Case No. 38 of 2013 (Old Sessions Case No.111 of 2011) is quashed and set aside. Since, original accused No.2 - Guddu Rajkumar Bharti has already been released by this Court on bail, by suspending the sentence, his bail bonds stand discharged. Accused No.1-Anuj @ Sonu Murlidhar Varma is ordered to be set at liberty forthwith, if, not required in connection with any other case. R & P be sent back to the concerned trial Court, forthwith. 25. In view of the order passed in the main matter, learned Advocate, Mr. Accused No.1-Anuj @ Sonu Murlidhar Varma is ordered to be set at liberty forthwith, if, not required in connection with any other case. R & P be sent back to the concerned trial Court, forthwith. 25. In view of the order passed in the main matter, learned Advocate, Mr. Patadiya, does not press Criminal Misc. Application (for Suspension Of Sentence) No.1 of 2023 and the same stands disposed of, as not pressed. Direct service is permitted.