Gujarat High Court Case Information System
Print
CR.A/386/2005 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 386 of 2005
With
CRIMINAL
APPEAL No. 673 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DINESH
@ MUNNO DHANJI MAKWANA & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
HARSHIT S TOLIA for
Appellant(s) : 1 - 2.
MR MR MENGDEY APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 05/04/2010
COMMON ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
These
two appeals arise out of the judgment and order rendered by Sessions
Court, Gondal in Sessions Case No.44 of 2003 on 11.1.2005. The
appellants in Criminal Appeal No.386 of 2005 were original accused
Nos.1 and 2 and the appellant in Criminal Appeal No.673 of 2005 was
original accused No.3 before the trial Court. They were all tried for
the offences punishable under Section 302 read with Section 34 of IPC
and Section 135 of the Bombay Police Act. The trial Court by the
impugned judgment convicted all of them and hence these appeals.
Since
the appeals arise out of the same judgment and order, they are heard
together and are disposed of by this common judgment and the
appellants are referred to by their original number as accused before
the trial Court for the sake of convenience.
2. It
is reported by learned advocate Mr Buddhbhatti that accused No.3
(appellant in Criminal Appeal No.673 of 2005) expired on 26.10.2009.
In support of his submission, he has produced a copy of the death
certificate. He states that heirs and legal representatives of
accused No.3 have not approached him. The Court record also indicates
that they have not approached this Court either till date. Under the
circumstances, Criminal Appeal No.673 of 2005 would stand abated.
3. The
accused persons are alleged to have committed murder of one
Dineshbhai Nathabhai on 22.1.2003 at about 21-00 hours in the
outskirts of village Khirsara when it is alleged that A-2 caught hold
of the deceased by neck and A-1 inflicted knife blows in the abdomen
of the deceased which resulted into his death. FIR (Exh.49) was
lodged by Bhikhabhai Nathabhai, PW-1, with Lodhika Police Station; on
the basis of which offence was registered, investigated and
charge-sheet filed in the Court of JMFC, Gondal, who, in turn,
committed the case to the Court of Sessions and Sessions Case No.44
of 2003 came to be registered. Charges were framed against the
accused persons at Exh.1, to which they pleaded not guilty and
claimed to be tried. The trial Court considering the evidence led by
the prosecution convicted all the three accused persons.
4. The
trial Court convicted A-1 and A-2 for the offence punishable under
Section 302 read with Section 34 of IPC whereas convicted A-3 for the
offence punishable under Section 302 read with Section 109 of IPC.
All the three were sentenced to undergo imprisonment for life and to
pay a fine of Rs.2000/- each, in default, to undergo RI for three
months.
5. We
have heard learned advocate Mr Tolia for A-1 and A-2 (appellants in
Criminal Appeal No.386 of 2005). He has raised the following
contentions :-
(i) That
the prosecution case depends on the evidence of sole eye-witness,
Samantbhai – PW-6 (Exh.21) but his evidence suffers from a number of
defects and the Court, therefore, may be cautious in accepting the
evidence. It was contended that the evidence of Samantbhai suffers
from the vice of improvement in his original version. The witness is
a chance witness; that he was on inimical terms with the accused and
that he is a sole eye-witness.
(ii) The
Panchnama of the place of incident would indicate that there were no
blood marks on the spot. Similarly, the witness who took the deceased
to his home and then to hospital, does not speak of any blood marks
either at the residence of the victim or on his clothes and looking
to the injuries, as described by doctor, there ought to have been
some marks of blood at the spot of the incident. The evidence of
eye-witness involving the appellant, therefore, becomes doubtful and
benefit may be given to the accused and the appeal may be allowed.
6. Learned
APP Mr Mengdey has opposed this appeal. According to him, simply
because the eye-witness was the sole person to see the incident, his
evidence cannot be discarded. Animosity is a fact of life, but the
witness has not acted upon such an incident till the present incident
occurred. If animosity was to act as driving force for false
implication, the witness would have done so much earlier. He,
therefore, contended that there is no substance in the appeal and the
appeal may be dismissed.
7. We
have examined the record and proceedings of the case in the context
of rival submissions.
8. There
is no dispute on the fact that Samantbhai Ravjibhai is the sole
eye-witness to the incident. If we see his evidence, he says that he
is a resident of Khirsara.On 22.1.2003, in the morning he had gone to
his place of work at Vajdi and around 6 6.30 pm, he returned to
his home. While returning home, when he reached the outskirts of
village Khirsara, he noticed the incident. He tried to intervene and,
therefore, A-2 caught hold of the deceased by neck and A-1 inflicted
the knife blow on the abdomen of the deceased. Thereafter both the
accused persons fled away from the place on bicycle leaving behind
the knife. The witness says that he informed the family members of
the victim then came back to the spot and took the victim in a jeep
car to hospital at Rajkot. The witness says that the roots of the
present incident lied in an earlier quarrel. During
cross-examination, it emerges that the distance between Vajdi and
Khirsara is about 10 to 12 kms. and it takes about 10 to 15 minutes
for a vehicle to travel the distance. He also admits that there are
two ways of going to his residence, one which goes by bus-stand
whereas the other passes through the outskirts of the village. He
also admits that A-1 and A-2 had lodged an FIR against his parents.
9. What
emerges from the evidence of this witness is that the witness had
grievance against A-1 and A-2 as they had lodged an FIR against the
parents of the witness. Therefore, he was an inimical witness.
9.1 The
witness says that he left his place of work around 6 – 6-30 in the
evening. The incident occurred around 9-00 pm. It also emerges from
the evidence that the distance between his place of work and his home
is about 10 to 12 kms. and a vehicle would take about the same time
for travelling the distance. If the witness left his place of
employment at about 6- 6-30 and if he says that he saw the incident
while he was going back home from the place of incident, it is for
the prosecution to reconcile the situation as to how this can happen.
Ordinarily, the witness would reach home by 7 7-30 pm. If that
did not happen then it was for the prosecution to explain as to how
it took about 3 hours for the witness to reach his home and there
the prosecution has failed. The third aspect is that the witness
states that his affidavit was obtained by the Investigating Officer.
The affidavit is at Exh.22. If we read the affidavit, he says that he
saw A-1 inflicting knife blow. He attributes nothing to A-2, whereas
in his evidence he has alleged that A-2 caught hold of the deceased
by neck and A-1 inflicted knife blow. Differently put, this witness
improves upon his story which emerges from his own affidavit. Thus,
this witness improves upon his original version to suit to the
requirement of evidence or case of the first informant where the
first informant PW-1 Bhikhabhai has stated that A-2 caught hold of
the deceased by neck and A-1 inflicted the knife blow. The
improvement, therefore, though may initially sound innocuous is
designed to suit to the requirement of the prosecution case.
9.2 So
far as the affidavit (Exh.22) is concerned, this witness says that it
was obtained by the Investigating Officer, whereas if the evidence of
the Investigating Officer – PW-14 (Exh.40) is seen, he says that the
affidavit duly sworn was produced before him by this witness. The
prosecution is unable to reconcile the situation and there is no
answer to this hide and seek game between the IO and the witness.
Last but not the least, we may record that at the place of incident,
no blood stains were found when the Panchnama was drawn against which
there is evidence that the deceased died of profuse bleeding. We are
not very sure whether this profuse bleeding was only internal and
there is no clear medical evidence on this aspect.
10. Considering
the above aspects, we are of the view that total reliance cannot be
placed on evidence of such solitary eye-witness whose evidence
suffers from the above stated defects. The evidence does not travel
beyond the line of reasonable doubt. Once it is circumscribed by the
element of reasonable doubt, it must fail. The case must end up and
result in favour of the accused. The Court has looked for a
corroborative piece of evidence but to find none. Under the
circumstances, in our view, the trial Court erred in recording
conviction of the accused persons on the basis of evidence of this
sole witness. The case is not proved by the prosecution beyond
reasonable doubt and benefit must go to the accused.
11. Criminal
Appeal No.386 of 2005 is allowed. The conviction of accused No.1-
Dinesh @ Munno Dhanji Makwana and accused No.2- Pratap @ Lakhman @
Lakho Dhanji Makwana (the appellants therein) is hereby set aside.
They are acquitted of charges levelled against them by giving them
benefit of doubt. Accused No.1 be set at liberty forthwith, if not
required in any other case. Bail bond of accused No.2 shall stand
cancelled. Fine paid, if any, be refunded to them.
Criminal
Appeal No.673 of 2005 stands abated.
(A.L.
DAVE, J.)
(BANKIM
N. MEHTA, J.)
zgs/-
Top