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2024 DIGILAW 551 (GUJ)

State Of Gujarat v. Chaturbhai Somabhai Thakor

2024-03-15

A.Y.KOGJE, SAMIR J.DAVE

body2024
JUDGMENT : A.Y. Kogje, J. 1. Present Appeal is preferred by the State under Section-378 of the Code of Criminal Procedure, 1973 against the judgment and order dated 21.03.1998 passed in Sessions Case No.134 of 1991 by the Additional Sessions Judge, Kheda at Nadiad. 2. The State is in Appeal on the ground that evidence recorded during the course of trial was sufficient to establish the case against the respondent-accused and therefore, an error is committed by the Sessions Court in giving benefit of doubt to the respondent-accused and acquitting him of the charge. 3. The FIR came to be registered in connection with the incident, which took place midnight between 13-11-1990 and 14-11-1990, where allegedly respondent-accused assaulted the deceased with stick on the vital part of the body resulting in serious injuries and subsequent death of the deceased. 4. The respondent-accused is second husband of witness- complainant; Gangaben and deceased is father. According to the prosecution, on account of some matrimonial issues, Gangaben was staying with her father against wishes of the husband and therefore, when the husband came to take her back, the father having refused, assault has taken place. Initially, FIR came to be registered for offence under Section-323, 325 of IPC and under Section-135 of B.P. Act being C.R. No.209 of 1990 registered with Petlad Town Police Station and thereafter, on account of expiry of deceased during the treatment, Report of adding Section-302 appears to have been made and therefore, the respondent-accused was chargesheeted for offence under Section-302 of IPC and Section-135 of B.P. Act. 5. Learned Additional Public Prosecutor has contested the impugned judgment and order by submitting that the Court has not correctly appreciated the evidence of eye-witness; Gangaben; daughter of the deceased, where in the evidence in chief examination, she has deposed that the accused had assaulted her father (deceased) with stick. She has also deposed that for demanding some money on behalf of this witness, he had given blow with the stick. 5.1 It is submitted that if the clear evidence of eye-witness whose presence at the place of offence cannot be doubted, the Sessions Court ought to have given sufficient weightage to the evidence of the eyewitness. She has also deposed that for demanding some money on behalf of this witness, he had given blow with the stick. 5.1 It is submitted that if the clear evidence of eye-witness whose presence at the place of offence cannot be doubted, the Sessions Court ought to have given sufficient weightage to the evidence of the eyewitness. 5.2 Learned APP has thereafter drawn attention of this Court to the Discovery Panchnama, which according to him, would attract the provision of Section-27 of Indian Evidence Act and therefore, as authorship of concealment is revealed of the weapon used in the crime, the same can be treated as substantial evidence. It is submitted that said panchnama is established by the evidence of the Investigating Officer, though the panch-witnesses have not supported the execution of discovery panchnama. 5.3 Learned APP has further submitted that if the discovery panchnama is perused, then it is also coming out that the weapon used in the offence contain blood-stains and if two incidents are viewed together that is to say the panchnama of scene of offence and the discovery panchnama indicating blood-stain, then prosecution has successfully established the usage of stick in carrying out the assault. 6. As against this, learned Advocate appearing for the respondent-accused in support of the acquittal, has submitted that the prosecution has failed to establish the case beyond reasonable doubt particularly, though the prosecution has identified witness; Gangaben as eye-witness. From her own deposition, it is not coming out as if she has actually witness the incident, but it is coming out that she was in fact inside the the room and she heard the shouts of her husband that somebody is assaulting her father. 6.1 Moreover, this witness has also not supported the incident as is projected by the prosecution as in her cross-examination, she has also admitted that at the first instant, when she related incident to another witness; Jayantibhai, she had told him that someone had assaulted her father at the field. 6.2 It is submitted that even from the scene of offence panchnama, it is coming out that the scene of offence is open area, where any person can easily come in and go out and therefore, there is no reason to disbelieve the eye-witness when she has indicated in the deposition that someone has assaulted her father at the scene of offence. 6.3 Learned Advocate has submitted that discovery panchnama is not supported by the panch-witnesses and that the Investigating Officer though has referred to discovery panchnama vide Exh-32, but content of such panchnama has not been deposed by this witness and therefore, it cannot be treated as panchnama is established before the Court. 6.4 Learned Advocate has further submitted that even if the discovery panchnama is to be believed, it still does not relate the respondent-accused with the stick particularly the stick was never sent to the FSL to establish that so called blood-stains on the stick were that of the blood group of the deceased or the accused. 6.5 Learned Advocate has thereafter submitted that investigation itself was not upto the mark as the best witness, who was deceased himself, who had survived for almost 12 days. It is coming out on record that for two days, the deceased was conscious, still no Dying Declaration was recorded by the Investigating Officer. On account of lapses on the part of the investigation, the Sessions Court was justified in giving benefit of doubt to the respondent-accused. 7. Having heard the learned Advocates for the parties and having perused the documents on record, the incident was reported vide FIR being C.R. No.209 of 1990, wherein the incident was of 13-11-1990 in the midnight, when reportedly assault has taken place upon the deceased, who sustained injuries on the head, because of which, he was on the next day, moved for medical treatment and expired after 12 days. 7.1 Investigation was initially carried out for offence under Section- 323, 325 of IPC and Section-135 of B.P. Act. Later on the respondent-accused came to be chargesheeted for offence under Section-302 of IPC. From the record, it appears that upon complying with Section-207 of Cr.P.C., the Sessions came to be committed vide Sessions Case No.134 of 1991 with the Additional Sessions Judge, Kheda at Nadiad. 7.2 The Sessions Court proceeded to frame charge vide Exh-4 referring to the incident of 13-11-1990 and assault by the respondent-accused on his father-in-law; Shanabhai, as Shanabhai was not sending his wife; Gangaben with him and therefore, he got aggressive and assault has taken place. 7.3 The Court has taken into consideration the evidence of eye-witness; Gangaben, who is daughter of the deceased and wife of the accused. She is examined at PW-3 vide Exh-12. 7.3 The Court has taken into consideration the evidence of eye-witness; Gangaben, who is daughter of the deceased and wife of the accused. She is examined at PW-3 vide Exh-12. Her deposition in evidence in chief-examination does indicate the manner in which, husband had arrived at place, where she was residing with her father and had insisted that she should accompany him to the matrimonial home, which was refused by father and therefore, the accused continued to reside there and in the night of the incident, while witness was in her room and both the deceased and the accused were sleeping outside in open, he had assaulted the deceased with stick. 7.4 However, this witness in the cross examination has not stood and confirmed the version given by her in the evidence in chief examination, where specifically she has deposed that she is under impression that her husband has assaulted the deceased. She has also deposed in the cross examination that she does not know that who has assaulted her father, as she was inside room and had latched the room from inside. She has in fact deposed that she was alerted and came out of the room only when she heard her husband shouting that somebody had assaulted her father and out of fear, the accused himself had tried to escape by climbing on the roof. 7.5 Overall appreciation of evidence of this witness, this Court is of the view that this witness cannot be treated to be an eye-witness, who has witness the assault by the accused on her father. In view of the aforesaid, the Sessions Court is justified in not believing the version of Gangaben as eye-witness to assault by the respondent-accused on the deceased. 7.6 The prosecution has examined Dr. Pankaj Haridas Barai; PW-1 vide Exh-8, who has performed the Postmortem and in Para-2 and Para-3 of his deposition, he has given details of the injuries sustained. The cause of death is also mentioned as internal hemorrhage on account of fractures sustained on the skull by the deceased and therefore, the prosecution to the extent of homicidal death of the deceased has produced sufficient evidence to establish the same. 7.7 The Court has taken into consideration the evidence of Dr. The cause of death is also mentioned as internal hemorrhage on account of fractures sustained on the skull by the deceased and therefore, the prosecution to the extent of homicidal death of the deceased has produced sufficient evidence to establish the same. 7.7 The Court has taken into consideration the evidence of Dr. Jayendra Ratilal Modi; PW-15, who is examined vide Exh-43, who is Doctor, who had first examined deceased when he was brought in unconscious state, but was alive as his other parameters were normal. In the cross examination, this witness has deposed that after being brought for treatment on 16-11-1990, the injured was in conscious state of mind on 18-11-1990 and 19-11-1990. 7.8 In the opinion of the Court, during the treatment and before the injured expired, when injured was in conscious state of mind, it was incumbent upon the Investigating Officer to resort to appropriate steps by recording dying declaration so that what actually had transpired during so called incident would have come on record. The failure on the part of the Investigating Officer in doing so, has necessarily benefited the accused. 7.9 The Court has thereafter taken into consideration the Discovery Panchnama, which is exhibited vide Exh-32 through two panch-witnesses namely Kantibhai who is examined as PW-7 vide Exh-24. Kantibhai has been declared hostile as he has deposed that except for taking signature on papers, he has no knowledge of what has transpired during the execution of panchnama. Similarly, Manibhai Ramabhai; PW-10 is examined vide Exh-31, who is another panch-witness and he has also not supported the case of the prosecution by deposing that he has merely signed the papers and is not aware of what has transpired. 7.10 The Court has perused Exh-32, wherein it is recorded that in an Banana agriculture field, near water tank, stick was removed and held in front of the panch-witness. It is pertinent to observe that as the panchnama was not proved by either of the panch-witnesses, the Investigating Officer has deposed as PW-14 vide Exh-40, he has referred to Exh-32; the Discovery Panchnama. However, while referring to the Discovery panchnama, contents of the panchnama are not narrated and therefore, as per the decision of the Apex Court in case of Shahaja @ Shahajan Ismail Mohd. However, while referring to the Discovery panchnama, contents of the panchnama are not narrated and therefore, as per the decision of the Apex Court in case of Shahaja @ Shahajan Ismail Mohd. Shaikh v/s. State of Maharashtra reported in 2022 (10) Scale 290 , it is clearly coming out that the Discovery panchnama cannot be said to have been proved by following due process prescribed and therefore, it cannot be treated as evidence of discovery of weapon. 7.11 In the opinion of the Court, the prosecution has therefore, failed to establish connection between weapon, which is used for assault and the same being discovered by the respondent-accused. 7.12 The Court has thereafter, taken into consideration the impugned judgment and order, wherein the Session Court has undertaken threadbare examination of the witnesses and has discussed the evidence of each of such witnesses; Gangaben being sole eye-witness. The Sessions Court has given due regards to the evidence of said Gangaben and has appreciated the evidence, wherein as this witness is interested witness in prosecution case, same way, it can be said that she is interested witness in the defense of the accused also. Hardly, the reasons are required to be assigned thereof. The deceased is the father of Gangaben and accused is husband of Gangaben and in such circumstances, the deposition of this witness is required to be considered minutely. Gangaben stated vide Exhibit-12 that his first husband died and thereafter, she used to stay with her father Shanabhai Raijibhai and her re-marriage was decided with accused Chaturbhai Thakor. Gangaben states in Para-3 of examination-in-chief that the accused Chaturbhai came to take her away. Her father denied. They dined that night. Chaturbhai stayed overnight there. Chaturbhai and Shanabhai slept near the cattle-shed of buffaloes. In the night, Chaturbhai shouted that ‘someone is beating your father’. Therefore, she got out. As per the deposition of Gangaben, there was dark at that time. Nothing was visible. Chaturbhai climbed up above the room and her father was injured. As per the examination-in-chief of Gangaben, Chaturbhai beaten her father with stick. He inflicted stick over the money transaction. In para-8 of cross-examination of Gangaben, Gangaben has admitted that Chaturbhai got scarred and climbed on the roof. She slept inside the room applying latch at the time of incident. She had doubt that her husband has killed her father. As per the examination-in-chief of Gangaben, Chaturbhai beaten her father with stick. He inflicted stick over the money transaction. In para-8 of cross-examination of Gangaben, Gangaben has admitted that Chaturbhai got scarred and climbed on the roof. She slept inside the room applying latch at the time of incident. She had doubt that her husband has killed her father. In para-7 of crossexamination of Gangaben, Gangaben has admitted that she earlier told to Jayantibhai that ‘Someone came in the night and killed my father.’ In para-7 of cross-examination of Gangaben, Gangaben has admitted that she did not see as to who killed him. No quarrel took place at the time of dinner. It appears clear from the deposition of Gangaben that Gangaben did not see the accused inflicting the blow of stick. Alternatively, it can be said that Shanabhai i.e. Gangaben’s father got injured on his head at about 12:15 a.m. and accused Chaturbhai shouted at that time. It means the presence of the accused is established. However, Gangaben does not state that the accused inflicted stick to Shanabhai. Of course, it is proved from the deposition of Gangaben that the incident took place in the night and the accused as well as deceased were in the same farm in the night. Moreover, it only proves that the accused took dinner in the house of deceased in the night of incident. 7.13 In the impugned Judgment, the Sessions court has also appreciated the evidence from the point whether the deposition of witness Gangaben is corroborated with circumstantial evidence. Jayantibhai Ishwarbhai Patel states vide Exhibit-22 that the panchnama of the farm in question was drawn in presence. Shanabhai was lying unconscious over there. Shanabhai was lying between new and old room. There were two plastic bags also. It was smearing with blood and nothing was there surrounding the said farm. In para-2 of the cross-examination, the witness has stated that there was neither cattle-shed of buffalo nor buffalo in the farm in question. It is to be noted that as per the deposition of Gangaben, deceased Shanabhai slept near the cattle-shed of buffaloes. In para-2 of the cross-examination, Jayantibhai has admitted that there was no fencing to the farm in question and any person can enter at that place. There is traffic movement on the road in the night. It is to be noted that as per the deposition of Gangaben, deceased Shanabhai slept near the cattle-shed of buffaloes. In para-2 of the cross-examination, Jayantibhai has admitted that there was no fencing to the farm in question and any person can enter at that place. There is traffic movement on the road in the night. Therefore the Sessions Court was justified in concluding that there is no evidence that may corroborate the version of Gangaben if at all it supports the case of the prosecution. 7.14 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. 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. 8. In view of the aforesaid and for the reasons stated herein above, the Court finds no reason to interfere with the acquittal recorded by the judgment and order dated 21.03.1998 passed in Sessions Case No.134 of 1991 by the Additional Sessions Judge, Kheda at Nadiad. 9. “In the result, the appeal fails and is dismissed. The judgment and order dated 21.03.1998 passed in Sessions Case No.134 of 1991 by the Additional Sessions Judge, Kheda at Nadiad stands confirmed. 9. “In the result, the appeal fails and is dismissed. The judgment and order dated 21.03.1998 passed in Sessions Case No.134 of 1991 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.”