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2025 DIGILAW 329 (GUJ)

Rajendrasinh Jaydevsinh Dabhi v. State of Gujarat

2025-03-27

ILESH J.VORA, SANDEEP N.BHATT

body2025
JUDGMENT : SANDEEP N. BHATT, J. 1. Feeling aggrieved by and dissatisfied with the judgment and order of conviction dated 15.12.2005 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Nadiad in Sessions Case No.73 of 2000 for the offences punishable under Sections 143, 147, 148, 427, 435 and 395 of the Indian Penal Code, the appellants – the convicts have preferred Criminal Appeal no.2593 of 2005 under Section 374 (2) of the Code of Criminal Procedure, 1973 (“the Code” for short) inter alia challenging the judgment and order of conviction. It is reported that by passage of time, Criminal Appeal No.2593 of 2005 is abated qua appellants Nos.2 and 9, respectively, as they are no more. The learned senior advocate has tendered their death certificates. The same are taken on record. 2. The case of the prosecution is that, on 16.04.1999 at about 4:00 p.m., the complainant – Nasirbhai Mujarbhai Ahmadi has received telephonic message, when he was at his home at Ahmedabad, that a mob has rushed to his Farm House, which is known as ‘Divetiya Farm’ and has damaged the farm house, agricultural equipment and thereby committed an offence of loot. Thereafter, the complainant has visited the place of incident, where he has seen that the damaged the house, the articles of bore-room and looted the same. The complainant has stated in his complaint that, due to earlier incident happened before 2/3 days prior to the incident in question that, when he was doing fencing, at that time, Rajendrasinh Jaydevsinh Dabhi and other 3-4 persons came there and threatened him about the same. The complainant has given a complaint with regard to the incident in question before the Mahemadabad Police Station, District : Kheda, which was registered for the offences under Sections 435, 397, etc., of the Indian Penal Code. 3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the appellants - accused, charge-sheet came to be filed in the learned competent Court and in turn, committed the case to the Sessions Court, Nadiad as provided under section 209 of the Code. 4. After having found material against the appellants - accused, charge-sheet came to be filed in the learned competent Court and in turn, committed the case to the Sessions Court, Nadiad as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court concerned, the learned Sessions Judge framed charge at Exh.5 against the appellants – accused for the offences under Sections 143, 147, 148, 149, 427, 435 and 395 of the Indian Penal Code. The appellants - accused pleaded not guilty and claimed to be tried. 5. In order to bring home charge, the prosecution has examined some witnesses and also produced various documentary evidence before the learned trial Court, described in Paras 6 and 7 of the impugned judgment and order, which are as under : Oral Evidence Exhibit No. Name of Witness 29 Jenabhai Dhulabhai Parmar 40 Melabhai Dhulabhai Parmar 41 Jashubhai Ramanbhai Dabhi 43 Bhathibhai Dhulabhai Zala 45 Jitubhai Andarsinh Sodha 47 Dhanjibhai Bababhai 48 Bhalabhai Ratibhai 50 Ramabhai Dhulabhai 52 Pratapbhai Pulabhai 54 Nizamkhan Nivaskhan 56 Sureshbhai Ratnabhai 57 Bachubhai Dayabhai 59 Shantaben Gotabhai Dabhi 60 Javid Nasim Ahemadi 76 Kalubhai Tapubhai Manjariya 77 Ishwarbhai Parshottamdas Agja 78 Shivnathsing Kishansing Yadav 79 Ramsinh Phulsinh Dabhi Documentary Evidence 71 Complaint 41 Panchnama of Scene of Offence 44 Panchnama of Place of Offence shown by the accused 46, 52, 55 and 73 Panchnama of Muddamal 51 Panchnama of producing weapons 81 Certified copy of the station diary 85 Receipt of payment made for police protection 6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the appellants- accused so as to obtain their explanation/answer as provided u/s. 313 of the Code. In the further statement, the appellants - accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge convicted the appellants - accused of the offences, for which they were tried. 7.1 It is noted that pending appeal, appellants No.2 – Vadhaji Babaji Parmar (Vadhabhai Bababhai Parmar) and appellant No.9 – Ghanshyamsinh Fatesinh Dabhi have expired and therefore, Criminal Appeal No.2593 of 2005 qua them came to be abated. Initially, there were total 14 accused. 7.1 It is noted that pending appeal, appellants No.2 – Vadhaji Babaji Parmar (Vadhabhai Bababhai Parmar) and appellant No.9 – Ghanshyamsinh Fatesinh Dabhi have expired and therefore, Criminal Appeal No.2593 of 2005 qua them came to be abated. Initially, there were total 14 accused. 7.2 Criminal Appeal No.218 of 2006 is preferred by the State for enhancement of conviction. 7.3 Criminal Revision Application No.1 of 2006 is preferred by the son of the complainant for enhancement of conviction. 7.4 Since all the matters are arising from one trial and the contentions, submissions and evidence are the same, all the matters are listed, heard and decided by this Court together, with consent of the learned advocates appearing for the parties. 8. We have heard learned senior advocate Mr. J.M. Panchal with learned advocate Mr. K.J. Panchal for the appellants – accused, learned APP Mr. Jay Mehta for the State and Mr. M.M. Tirmizi for the son of the original complainant, as the original complainant is no more and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing. 9.1 Learned senior advocate Mr. J.M. Panchal with learned advocate Mr. K.J. Panchal for the appellants – accused has submitted that though the said incident has taken place, the involvement of the appellants-accused in the incident cannot be established in view of the contradictions in the evidence of the witnesses on the vital part; that the theory propounded by the prosecution in the FIR/complaint is that there was a mob of 50-60 persons who were involved in the offence, whereas witnesses to the incident PW-11 at Exh.56 assigned the role of arson to 25-30 persons; whereas PW-18 at Exh.79 states that as per the complaint recorded by him, there were 50-60 persons who committed offence; whereas PW-1 at Exh.29 speaks of involvement of 15-20 persons; whereas PW2 at Exh.40 speaks of involvement of 20-25 persons; whereas the charge is framed by the Court against 14 accused who were put to trial. He further submitted that in the present case, the complainant could not examine and the FIR/complaint is given exhibit by examining son of the complainant and therefore, the contents of the FIR/complaint could not be said to be duly proved and therefore could not be read in evidence either for corroboration or contradiction. He further submitted that in the present case, the complainant could not examine and the FIR/complaint is given exhibit by examining son of the complainant and therefore, the contents of the FIR/complaint could not be said to be duly proved and therefore could not be read in evidence either for corroboration or contradiction. He also submitted that there is no evidence with precise and exact role as to who looted the properties and there is no evidence of either recovery or discovery of looted articles/properties from the possession of the accused or at their instance and the muddamal was found lying in abandoned condition. 9.2 Learned senior advocate Mr.Panchal has further submitted that there is inordinate delay in giving the complaint. First Investigating Officer PW-15 at Exh.76 categorically deposed in cross-examination that even after his reaching the scene of offence at 12:30 hours and meeting the complainant, when was asked, the complainant instead of giving complaint at the scene, told this witness that he would give written complaint later on to Mahemdabad Police and the complaint was later on registered at 9:45 p.m and no explanation for the same is offered by the witnesses. He further submitted that as per the deposition of PW-18 Exh.79, in examination-in-chief, it is stated that upon reading complaint, it was disclosed to him that one unknown person had made call to the complainant at 4:00 p.m., informing him that some unknown persons had opened assault, whereas it is the prosecution case that when the son of the complainant as well as the complainant reached at the place of incident, police officials as well as fire brigade personnel were present over there and the first version of the alleged offence is suppressed by prosecution and is not brought on the record. 9.3 Learned senior advocate Mr.Panchal has also submitted that the core point of dispute is regarding putting up a wired fencing over 'NAAL' which was blocking and obstructing public way and the same was on a Government land, which is fortified by various witnesses examined during the course of trial; that it is the case of the prosecution that alleged incident of arson and dacoity took place in presence of police and there was police protection, which is also coming forward in evidence of many witnesses. 9.4 Learned senior advocate Mr.Panchal has further submitted that PW-14 at Exh.60 has deposed that even afterwards, the complainant did not come to know who were those unknown persons who had committed the offence and when they reached at the place, they did not meet persons who were residing at their farm and also there were no labourers and that the names of the accused were given on suspicion. He submitted PW-15 at Exh.76 has deposed that between the period when Investigating Officer reached at place till giving of complaint, it was not informed about any offence of loot having been committed; and that from 12:30 hours to 21:00 hours, what role has been played by which accused was not brought on the record. He submitted that the prosecution has tried to suppress the genesis and origin of the offence and only a selected part of the evidence is projected before the Court by falsely roping in accused. 9.5 Learned senior advocate Mr.Panchal has also submitted that the ex-facie the FIR is calculated and targeted by framing and choosing the accused as their names were not disclosed immediately. He, therefore, submitted that these are the major contradictions and discrepancies in the evidence led before the learned trial Court to connect the accused with the crime in question, which is overlooked by the learned trial Court and therefore, has committed an error in convicting the appellants - accused. 9.6 In support of his submissions, learned senior advocate Mr.Panchal has relied on the following decisions : (i) 1981 (Supp.) SCC 22 – Lakshman Prasad versus State of Bihar (Para-3) (ii) 1991 Supp. (2) SCC 437 – Sherey and Others versus State of U.P. (Para-4) (iii) (2005) 10 SCC 216 – Radha Kumar versus State of Bihar (Para-3) (iv) (2004) 9 SCC 431 – Ashok Vishnu Davare versus State of Maharashtra (Paras-12, 14 & 15) 9.7 He, therefore, prayed to allow this appeal and acquit the appellants-accused by setting aside the conviction and sentence awarded by the learned trial Court and the appeal preferred by the State as well as revision application, for enhancement, may be rejected. 10. Learned APP Mr. Jay Mehta for the State has vehemently opposed the submissions canvassed by learned senior advocate Mr.Panchal for the appellants. 10. Learned APP Mr. Jay Mehta for the State has vehemently opposed the submissions canvassed by learned senior advocate Mr.Panchal for the appellants. He has submitted that from the evidence produced before the learned trial Court, more particularly of eye-witnesses at Exh.29 – Jenabhai Dhulabhai Parmar and at Exh.40 - Melabhai Dhulabhai Parmar as well as eye-witness at Exh. 41 – Jasubhai Ramanbhai Dabhiand at Exh.Bachubhai Dahyabhai, who have given consistent version about 20 to 25 persons came on Farm and also have identified the accused persons in the Court, are sufficient material to establish the case of prosecution. He has further submitted that deposition of son of original complainant – Javed Nasim Ahemadi at Exh.60 and eye-witness Shantaben at Exh.59 as wll as police witnesses at Exh.76 – Kalubhai Tapubhai Manjari, PSI, Mahemdabad Police Station, Exh.77 – Ishwarbhai Purshottamdas Agaja and Exh.79 – Ramsingh Pulsingh Dabhi and deposition of Photographer at Exh.78 – Shivnathsingh Kisansingh Yadav also broadly supports the case of proseuction and prosuection has proved its case beyond reasonable doubt and therefore, the Court ought to have awarded maximum punishment to the accused under Sections 395 and 435 of the IPC . He has also submitted that it is very clear that a mob of 20-25 persons arrived at the farm of the complainant and started destructing the property and also compelled the other labourers present at the time of incident to leave their residents from the farm; and that the mob has also looted the property available at the farm and were also armed with deadly weapons as described by the eye-witnesses who were present at the time of incident; and that the investigating officers have also dawn the panchnamas of the scene of offence and discovered the muddamal articles at the behest of the present appellants – accused; and that the punishment imposed by the learned trial Court is not sufficient looking to the gravity of offence, more particularly when all the eye-witnesses have categorically mentioned the name of all the accused and also have identified the accused before the learned trial Court. In support of his submissions, he has relied upon the decision of the Hon’ble Apex Court in the case of Birbal Nath versus State of Rajasthan reported in 2023 SCC OnLine SC 1396 . In support of his submissions, he has relied upon the decision of the Hon’ble Apex Court in the case of Birbal Nath versus State of Rajasthan reported in 2023 SCC OnLine SC 1396 . He has submitted that looking to the evidence on record, the learned trial Court ought to have imposed the maximum punishment upon the appellants – accused. 11. Learned advocate Mr. M.M. Tirmizi for the original complainant i.e. son of the original complainant has adopted the arguments canvassed by the learned APP for the State. In addition, he has submitted that there are many eye-witnesses to the incident who have deposed before the learned trial Court and identified the appellants – accused, who have supported the case of the prosecution; and that the learned trial Court has rightly appreciated the evidence on record but imposed lesser punishment to the appellants – accused, which should be maximum under Sections 395 and 435 of the Indian Penal Code, therefore, the son of the original complainant has preferred revision application before this Court for enhancement of the sentence awarded by the trial Court. 12.1 First of all, it is required to be noted here the case of the complainant as per the FIR, that on 16.04.1999 at about 4:00 p.m., the complainant – Nasirbhai Mujarbhai Ahemadi has received telephonic message, when he was at his home at Ahmedabad, that a mob has rushed to his Farm House, which is known as ‘Divetiya Farm’ and has damaged the farm house, agricultural equipment and thereby committed an offence of loot. Thereafter, the complainant has visited the place of incident, where he has seen that the damaged the house, the articles of bore-room and looted the same. The complainant has stated in his complaint that, due to earlier incident happened before 2/3 days prior to the incident in question that when he was doing fencing, at that time, Rajendrasinh Jaydevsinh Dabhi and other 3-4 persons came there and threatened the complainant. The complainant has stated in his complaint that, due to earlier incident happened before 2/3 days prior to the incident in question that when he was doing fencing, at that time, Rajendrasinh Jaydevsinh Dabhi and other 3-4 persons came there and threatened the complainant. 12.2 If we look at the charge framed by the trial Court at Exh.5, that on 16.04.1999 at about 12:00 hours, in the Farm House owned by the complainant viz., ‘Divetiya Farm’ situated at Haldarvas, the accused persons in unlawful assembly, though aware that it is illegal, armed with deadly weapons, with an intention of rioting, entered into the said Farm, damaged the property and other farm equipment, looted the articles worth Rs.2,10,940/-, fired the grass and thereby committed an offence under Sections 143, 147, 148 427, 435 and 395 read with Section 149 of the Indian Penal Code. 12.3 It is required to be noted here that the complainant is not the eye-witness to the incident. In the complaint – Exh.71, the complainant has clearly stated that he came to know about the incident from telephonic message by unknown person at about 4:00 p.m. when he was at his home, on 16.04.1999. Whereas, the other witnesses, including the eye-witnesses, have stated in their depositions that the incident has happened at about 12:00/12:30 hours on 16.04.1999. The complainant has also stated that he has visited his farm at about 5:30 p.m., however, the complainant lodged the complaint at 9:45 p.m., which is not digestible. A prudent man can never wait for lodging the complaint if any untoward incident happens. The complainant has given the complaint in writing to the police station. 13. Since the complainant was not present at the place of offence, it is a hearsay incident for him. He has stated in his complaint – Exh.71 that a mob of 50-60 persons came to his farm house and damaged the house-holds and other farming equipment. Whereas, as per the depositions of the eye-witnesses, there were 15-20 persons came there. The trial Court has framed the charge against 14 persons only. It is a major discrepancy in the statement of the complainant and the statements of the eye-witnesses. 14. Further, there is no evidence of either recovery or discovery of looted articles / properties from the possession of the appellants - accused or at their instance. The trial Court has framed the charge against 14 persons only. It is a major discrepancy in the statement of the complainant and the statements of the eye-witnesses. 14. Further, there is no evidence of either recovery or discovery of looted articles / properties from the possession of the appellants - accused or at their instance. It is undisputed fact that the muddamal was found lying in abandoned condition. The witnesses to the panchnamas of recovery have turned hostile and considering the panchnamas at Exh.46, 51, 53 and 55, which are prepared in police station of recovery of sticks and gun as well as panchnama at Exh.73 of seizure of looted muddamal, which is not recovered from any accused, clearly shows that the prosecution has failed to establish the case beyond reasonable doubt. 15. Further, there is a discrepancy in the vehicle, in which the appellants have come to the farm house. The prosecution has stated that it was Eicher Tempo (407), whereas some of the witnesses have stated in their deposition that it was a truck. It is noted that the said vehicle either truck or tempo is not recovered as muddamal by the investigating officer. 16.1 Further, the incident has happened in broad-day light, which is undisputed fact. The charges levelled against the appellants are under Sections 143, 147, 148, 427, 435 and 395 read with Section 149 of the Indian Penal Code. The trial Court has imposed punishment under these charges to the appellants is maximum three years rigorous imprisonment. 16.2 Section 391 of the IPC reads as under : “391. Dacoity – When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit ‘dacoity’.” The learned trial Court has awarded three years rigorous imprisonment under Section 395 of the IPC , which is for dacoity. 16.3 At this juncture, it is required to be noted that as noted above, since there is no recovery or discovery of any muddamal articles from any of the appellants; and the muddamal was found lying in abandoned condition; and the panchas of recovery panchnamas have turned hostile, the ingredients of Section 395 do not attracted in the present case, as robbery cannot be proved under these circumstances. Therefore, it tilts balance in favour of the appellants. 17. Further, it is not the case of the complainant that the appellants have assaulted any person. The eye-witnesses have supported the case of the appellants in this regard. No one has deposed before the learned trial Court regarding any injury caused to anyone by the appellants. Though, many witnesses have stated in their depositions before the learned trial Court that the appellants were armed with deadly weapons; like rifle, sticks, sickle, and though they have also stated that they were shouting to kill the persons, however, it is a matter of record that the appellants have neither killed anyone nor assaulted nor injured any person. 18. The complainant was not present at the time of incident. He has received telephonic message from unknown person about the incident at about 12:30 hours. He visited the place of incident at about 5:30 p.m. Before that, the police was informed by anyone and therefore, when the complainant visited the place of incident, the police personnel were there. The complainant did not lodge the complaint at that time, though asked by the police authority. The complaint is lodged at about 9:45 p.m. by the complainant, that too in writing, before the Mahemdabad Police Station. This conduct of the complainant smacks a lot. 19. From the various depositions, this Court finds that most of the witnesses are known to the complainant; either they were in employment under the complainant or they were labourers at the time of incident. There is no independent witness who supports the case of the prosecution. Therefore, it tilts balance in favour of the appellants. 20. The complainant has stated in his complaint about the previous enmity between him and the appellant/s regarding the wired fencing. As averred, the same is the core point of dispute between the parties. The complainant was putting up a wired fencing over ‘NAAL’, blocking and obstructing the public way and that too on a Government land. 20. The complainant has stated in his complaint about the previous enmity between him and the appellant/s regarding the wired fencing. As averred, the same is the core point of dispute between the parties. The complainant was putting up a wired fencing over ‘NAAL’, blocking and obstructing the public way and that too on a Government land. The said fact is fortified by the eye-witnesses – Melabhai Dhulabhai Parmar - PW-2, Exh.40 in his deposition before the Court. 21. If we look at the angle of village people regarding blocking and obstructing the public way by putting wired fencing around ‘NAAL’, which is a Government land, it is but obvious that the village people might suffer huge difficulties in approaching their fields. In the rural areas, such ‘NAAL’ is the only source for the farmers to approach their fields and if anyone blocks it as if it is his private property by encroaching, it would be very difficult for such villagers / farmers to approach their fields and perform their day-to-day farming activities. 22. Under the circumstances, if we connect the dots that the village persons - appellants have approached the complainant before 2-3 days prior to the incident while he was doing wired fending upon the Government land i.e. ‘NAAL’, which is a public way for farmers to approach their fields, there were hot exchange words and there were chances that the complainant did not want to stop the said fencing work and therefore, to use as a tool of pressure tactic, the complaint is lodged, that too at about 9:45 p.m. in written. 23. At this stage, if we reconcile with the complaint vis-a-vis the deposition of eye-witness - Melabhai Dhulabhai Parmar - PW-2, Exh.40, who has supported the case of the prosecution, this Court finds the core point of the dispute. Reference is made to the decision of the Hon’ble Apex Court in the case of Lakshman Prasad (supra), where the Hon’ble Apex Court has held that “...mere congruity or consistency are not the sole test of truth. Sometimes, even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases. There are many inherent improbabilities in the prosecution case so far as the participation of appellants is concerned...”. Sometimes, even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases. There are many inherent improbabilities in the prosecution case so far as the participation of appellants is concerned...”. In the present case, there are material contradictions found in the statements of the eye-witnesses recorded before the police as well as depositions given by them before the trial Court; and that there is no recovery or discovery of any muddamal / stolen articles / properties; and that the muddamal was found lying in abandoned condition; and that there are many hostile witnesses; and that the conduct of the complainant smacks a lot regarding delay in lodging the complaint as well as encroachment upon the Government land i.e. ‘NAAL’, which is a public way for the village people. 24. The ratio laid down by the Hon’ble Apex Court on which the learned senior advocate Mr. Panchal for the appellants is heavily relied upon, is as under : 24.1 1981 (Supp.) SCC 22 – Lakshman Prasad versus State of Bihar (Para-3) “3. The central evidence against the appellant consisted of the testimony of P. Ws. 1 and 2 who were the servants of complainant Prosecution witness 4 Baijnath Prasad. It appears from the evidence that Baijnath Prasad was a rich business man of the locality and the accused-appellant Lakshman Prasad was his next door neighbour having a double storeyed house. Both the Courts below have accepted the prosecution case that a dacoity took place in the house of Baijnath Prasad in the course of which cash and other articles were stolen away. In the instant case, counsel for the appellant has not challenged this finding of the Courts below. We are also satisfied that a dacoity undoubtedly took place in the house of Baijnath Prasad. The only question that falls for consideration is whether or not the appellant participated in the crime. P. Ws. 1, 2 and 4 have supported the prosecution case that the appellant clearly participated in the dacoity and was, in fact, the leader of the dacoits. After going through their evidence, we do find that there is some amount of consistency in their evidence but mere congruity or consistency are not the sole test of truth. P. Ws. 1, 2 and 4 have supported the prosecution case that the appellant clearly participated in the dacoity and was, in fact, the leader of the dacoits. After going through their evidence, we do find that there is some amount of consistency in their evidence but mere congruity or consistency are not the sole test of truth. Sometimes even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases. There are many inherent improbabilities in the prosecution case so far as the participation of appellant is concerned. In the first place, admittedly the appellant was a respectable man in the sense that he was possessed of sufficient means and was a well-known homeopath doctor and also the neighbour of the complainant. In this view of the matter, it is difficult to believe that he would commit dacoity in the house of his own neighbour and that too in the early hours of the evening, so that he may be caught any moment and take the risk of a conviction u/s. 395 Indian Penal Code. Secondly, the evidence of the complainant Prosecution witness 4 clearly shows that the dacoits had no doubt concealed their identity but they did it in such a way that their faces were visible. Indeed, if the appellant had participated in the dacoity and took the precaution of concealing his identity, then he would have seen to it that his face was fully covered so that identification by the complainant or the witnesses would become impossible. If he was a dare-devil, then he would not have concealed his identity at all. Thirdly, FIR having been lodged the same evening the police visited the house of the appellant next morning and found him there. If the appellant had really participated in the dacoity, he would have at least made himself scarce. The house of the accused was also searched and nothing incriminating was at all found. Finally, there was the important circumstance that in view of a dispute between complainant Baijnath Prasad and the appellant, there was a clear possibility of the appellant having been falsely implicated due to enmity. The house of the accused was also searched and nothing incriminating was at all found. Finally, there was the important circumstance that in view of a dispute between complainant Baijnath Prasad and the appellant, there was a clear possibility of the appellant having been falsely implicated due to enmity. The complainant himself admits that there is a boundary wall around the house of the appellant and there is a road which runs to the east of his house and the mill of the complainant is situated to the west of the house. There is evidence of D. W. 2 that there has been some dispute between Baijnath Prasad and accused Lakshman Prasad two or three years before the occurrence of dacoity in respect of a passage near the house of accused Lakshman Prasad through which he used to go to his mill. The evidence of D. W. 2 does support what the complainant has himself admitted. The gravest provocation which the complainant must have felt was the fact that Lakshman Prasad bought a piece of land near his house from Kishori Lall the nephew of Baijnath Prasad. This is proved by Ex. Kha and the evidence of D. W. 4. The High Court also observed that the sale-deed executed by the nephew of the complainant in favour of the appellant was executed only a month before this occurrence. This therefore furnishes an immediate motive for the false implication of the appellant. Another important circumstance which seems to have been overlooked by the Courts below is that Prosecution witness 4 has clearly admitted in his evidence of the paper-book that immediately after the occurrence. a number of people near the mosque assembled, of whom he recognized Suba Raut and Moti Raut but they never came to his help. The witness also says that when he came from the west, he saw 40 to 50 persons at a little distance, including Ganesh Raut. Achhelal, Mathura Ram and Rameshwar. Obviously, if an occurrence of dacoity had taken place in the early hours of the evening, the near neighbours must have assembled and yet none of these neighbours have been examined to support the complainant's version that the appellant had participated in the occurrence. Achhelal, Mathura Ram and Rameshwar. Obviously, if an occurrence of dacoity had taken place in the early hours of the evening, the near neighbours must have assembled and yet none of these neighbours have been examined to support the complainant's version that the appellant had participated in the occurrence. It seems to us that the reason why these persons did not choose to support the complainant was that perhaps the appellant had been falsely implicated and hence the persons who had assembled may not have relished the idea of supporting the complainant if he had gone to the extent of falsely implicating the appellant in the dacoity. These intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in our minds regarding the complicity of the appellant in the dacoity. It is well settled that while witnesses may lie, circumstances do not.” 24.2 1991 Supp. (2) SCC 437 – Sherey and Others versus State of U.P. (Para-4) “4. We have carefully gone through the evidence. We have no doubt that all the eyewitnesses were present. Nothing significant has been elicited in their cross-examination. However, the eye-witnesses simply named these appellants and identified them. So, the question is whether, it is safe to convict all the appellants. In a case of this nature, the evidence of the witnesses has to be subjected to a close scrutiny in the light of their former statements. The earliest report namely the F. I. R. has to be examined carefully. No doubt in their present deposition they have described the arms carried by the respective accused but we have to see the version given in the earliest report. In that report P.W. 1 after mentioning about the earlier proceedings has given a fairly detailed account of the present occurrence. He has mentioned the names of the witnesses and also the names of the three deceased persons. Then he proceeded to give a long list of names of the accused and it is generally stated that all of them were exhorting and surrounded the P.Ws. and the other Hindus and attacked them. But to some extent specific overt acts are attributed to appellants Nos. 1, 4, 5, 7, 8, 10, 17, 22 and 25. It is mentioned therein that these nine accused were armed with deadly weapons and were seen assaulting the deceased Ram Narain and others. and the other Hindus and attacked them. But to some extent specific overt acts are attributed to appellants Nos. 1, 4, 5, 7, 8, 10, 17, 22 and 25. It is mentioned therein that these nine accused were armed with deadly weapons and were seen assaulting the deceased Ram Narain and others. Now in the present deposition he improved his version and stated that in addition to these nine accused, five more persons also attacked the deceased and others. In view of this variation he thinks that it is safe to convict only such of the appellants who are consistently mentioned as having participated in the attack from the stage of earliest report. With regards the rest P.W. 1 mentioned in an omnibus way that they were armed with lathis. He did not attribute any overt act to any one of them. Further, the medical evidence rules out any lathis having been used. The Doctor found only incised injuries on the dead bodies and on the injured P.Ws. Therefore, it is difficult to accept the prosecution case that the other appellants were members of the unlawful assembly with the object of committing the offences with which they are charged. We feel it is highly unsafe to apply sec. 149, I. P. C. and make every one of them constructively liable. But so far as the above nine accused are concerned the prosecution version is consistent namely that they were armed with lethal weapons like swords and axes-and attacked the deceased and others. This strong circumstances against them establishes their presence as well as their membership of the unlawful assembly. The learned counsel appearing for the State vehemently contended that the fact that the Muslims as a body came to the scene of occurrence would show that they were members of an unlawful assembly with the common object of committing various offences including that of murder. Therefore all of them should be made constructively liable. But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that paint of view it is safe only to convict the above-mentioned nine accused whose presence is not only consistently mentioned from the stage of F.I.R. but also to whom overt acts are attributed. Therefore we have to find some reasonable circumstance which lends assurance. From that paint of view it is safe only to convict the above-mentioned nine accused whose presence is not only consistently mentioned from the stage of F.I.R. but also to whom overt acts are attributed. The fact that they were armed with weapons like swords and axes and attacked the victims shows that they were members of an unlawful assembly with the common object of committing murder and other offences with which they were charged. In the result we confirm all the convictions and sentences awarded to appellants No. 1 Sherey, No. 4 Tafazzul, No. 5 Aziz, No. 7 Rasheed, No. 8 Rahman, No. 10 Nasrullah, No. 17 Lal Mohammad alias Lalu, No. 22 Shauliah and No. 25 Halim. So far as the other appellants are concerned, for the above stated reasons we set aside the convictions and sentences passed against them and direct that they shall be set at liberty forthwith if not required in any other case.” 24.3 (2005) 10 SCC 216 – Radha Kumar versus State of Bihar (Para-3) “3. As this appeal is bound to succeed on a short question, there is no necessity to narrate the facts. Suffice it to say that the allegation against the appellant was that he fired two shots which hit one Salo Devi who succumbed to injuries. The first information report was lodged by PW 7 who having not supported the prosecution case in court was declared hostile. Other witnesses who claimed to be eyewitnesses are PWs 2, 3, 4 and 6 out of whom PW 3 has been disbelieved by the trial court itself. As such there remains evidence of PWs 2, 4 and 6. The occurrence is said to have taken place on 19.03.1993 and these witnesses were examined in the Sessions Court between 12.08.1994 and 11.01.1995 i.e. after several months of the date of the alleged occurrence. Undisputedly, these witnesses have not disclosed complicity of the appellant in the crime in their statement made before the police inasmuch as they have not even disclosed the name of the appellant as the accused in their statement made before the police and for the first time in the Sessions Court after several months they have disclosed complicity of the appellant in the crime. No reason has been assigned by the prosecution for non-disclosure of the name of the appellant before the police by these witnesses. This being the position, we are of the view that it would not be safe to place reliance upon the statement of these witnesses made for the first time in the Sessions Court after several months of the alleged occurrence without there being any reasonable excuse for not naming the accused before the police especially when the prosecution case has not been supported by the informant who also claimed to be an eyewitness.” 24.4 (2004) 9 SCC 431 – Ashok Vishnu Davare versus State of Maharashtra (Paras-12, 14 & 15) “12. This part of the statement of PW-6 clearly shows that his evidence in regard to having seen the beating of the deceased by the appellant and the demand for money is an improvement from his previous statement made to the Police. This coupled with the fact that in the complaint no such allegation has been made makes us feel that it is not safe to rely on the evidence of this witness. 14. From the evidence of PW-8, the I.O. it is seen that PW-3 Sonabai, the neighbour of PW-2 did not tell him that the deceased had told her about the demand of Rs.5,000 and that she had heard about it. Therefore, this part of the evidence of PW-3 becomes an improvement. 15. From the above evidence, in our opinion, it is not possible to come to the conclusion that the prosecution has established its case beyond all reasonable doubt in regard to the charges alleged against the appellant. In our opinion, the courts below have not properly appreciated the evidence and failed to notice the glaring improvements made by the witnesses in their evidence given before the court. These improvements in our opinion materially affect the creditworthiness of the prosecution case hence it is not safe to base a conviction.” 25. In our opinion, the courts below have not properly appreciated the evidence and failed to notice the glaring improvements made by the witnesses in their evidence given before the court. These improvements in our opinion materially affect the creditworthiness of the prosecution case hence it is not safe to base a conviction.” 25. The ratio laid down by the Hon’ble Apex Court in the case of Birbal Nath versus State of Rajasthan - 2023 SCC OnLine SC 1396 , more particularly, on which, the learned APP for the State Mr.Mehta is heavily relied upon, is as under : “Contradictions in two statements may or may not be sufficient to discredit a witness, Sections 145 read with 155 of Evidence Act, 1872 must be carefully applied in a given case. Coming back to the instant case, the Court accepted that ‘some discrepancies invariably occur in such cases when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands. In other words, they are not big farmers. The rural setting, the degree of articulation of such a witness in a Court of Law are relevant considerations while evaluating the credibility of such a witness. Moreover, the lengthy cross-examination of a witness may invariably result in contradictions. But these contradictions are not always sufficient to discredit a witness.” 26. Therefore, considering the facts of the present case and in view of above stated decisions, the judgments cited at the bar by learned senior advocate for the appellants Mr.Panchal are more helpful to the case of the appellants, as the Hon’ble Apex Court has also shown some reservations about implicating persons in case of loot or robbery who are known to the complainant or accused, otherwise also, there are several material contradictions in the evidence adduced in the present case and prima facie, it transpires that this is a case of over implication also, more particularly, considering the conduct of the complainant, who could not deposed before the trial Court as he has expired during the pendency of the trial. 27. 27. It is noted that the during the pendency of the trial, all the appellants are on bail and even after the judgment and order of the learned trial Court dated 15.12.2005, the appellants are released on bail by the trial Court vide order dated 15.12.2005 on the ground to approach this Court. They have approached this Court, their appeal is admitted by this Court and this Court has released them on bail vide order dated 23.12.2005, as reported by the appellants. 28. In view of the aforesaid discussion and re-appreciation of the entire evidence on record, the Court is of the considered opinion that the prosecution has not proved the case beyond reasonable doubt by leading cogent and convincing evidence and the trial court has not appreciated the entire evidence in its true perspective. On going through the entire evidence led by the prosecution; both, ocular as well as documentary, it appears that the complainant has not supported the case of the prosecution regarding essential ingredients of the offence. Similarly, the evidence of the panch-witnesses disclose some glaring aspects which cast serious doubt about the story of the prosecution. Considering the aforesaid, it cannot be said that the prosecution has proved the case beyond reasonable doubt. 29. On perusal of entire record of the trial Court and after re-appreciating the relevant evidence available on the record, it transpires that the trial Court has committed error in finding that case of the prosecution is proved. This Court is of the considered view that though prosecution has tried to establish the case about factual position that incident has occurred, but involvement of the present accused was not proved beyond reasonable doubt, considering the material contradictions and also omissions in the evidence of the witnesses. Moreover, the conduct of the complainant, who was a lawyer by profession, clearly indicates about over implication of the accused, more particularly, considering the deposition of police officer, who clearly deposed that the police protection was given for the fencing purpose and some police personnel were also available at the place of fencing, and considering the aspect that place of fencing is also disputed place, which is on Government land. In addition to the fact, no recovery was carried out at the behest of the accused persons or any thing is recovered of alleged looted goods from the possession of accused persons and considering the material contradictions in the depositions of all the so-called eye-witnesses, who were working with the complainant in his farm, the impugned judgment passed by the learned trial Court cannot be sustained in eye of law. 30. Before parting with the judgment, it would be apt to reiterate the fundamental principle of criminal jurisprudence as affirmed by the highest court that, in criminal trial, it is for the prosecution to bring home the guilt of the accused since the burden of proving the guilt beyond reasonable doubt always rests upon the prosecution. It is also settled that the prosecution has to stand on its own legs and cannot take advantage or undue advantage of the defence put-forth by the accused. The Apex Court, in the case of Rabindra Kumar Dey versus State of Orissa reported in AIR 1977 SC 170 , reiterated three cardinal principles, viz., (i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; (ii) that in a criminal trial, the accused must be presumed to be innocent unless he is proved to be guilty; and (iii) that the onus of the prosecution never shifts. 31. Keeping in mind the cardinal principles of the criminal jurisprudence as stated herein above and considering the evidence on record, this Court is of the considered opinion that in the instant case, it cannot be said that the prosecution has proved the case beyond reasonable doubt by leading cogent and convincing evidence and, therefore, the benefit of doubt goes in favour of the appellants - accused. 32. On the facts and in the circumstances of the case, this Court is of the opinion that the evidence led by the prosecution are contradictory and the same cannot be relied upon. Thus, it appears that the trial court has fell in error while convicting the present appellants for the alleged offence and, therefore, interference by this Court is warranted. 33. In view of above, the following order is passed. Thus, it appears that the trial court has fell in error while convicting the present appellants for the alleged offence and, therefore, interference by this Court is warranted. 33. In view of above, the following order is passed. 33.1 Criminal Appeal No.2593 of 2005 preferred by the appellants is hereby allowed, except appellant Nos.2 and 9, for whom the appeal is abated as they have expired during the pendency of the appeal. The impugned judgment and order dated 15.12.2005 passed by the Additional Sessions Judge, Fast Track Court, Nadiad in Sessions Case No.73 of 2000 is quashed and set aside. The appellants be set at liberty, forthwith, if not required in any other offence. The amount of fine, if any, paid by the appellants – accused shall be refunded to them immediately. 33.2 Consequently, Criminal Appeal No.218 of 2006 preferred by the State for enhancement of sentence is hereby dismissed. 33.3 Accordingly, Criminal Revision Application No.1 of 2006 preferred by the son of the complainant for enhancement of sentence is also hereby dismissed. 34. Record and proceedings are ordered to be sent back to the concerned trial Court, forthwith.