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CR.A/18/2003 2/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 18 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA : Sd/-
HONOURABLE
MR.JUSTICE KS JHAVERI : Sd/-
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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 ?
=======================================================
GADAJI
MANAJI THAKOR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=======================================================
Appearance :
MS
SHILPA R SHAH for Appellant(s) : 1,
MR HL JANI APP for Opponent(s)
: 1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 03/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE R.P.DHOLAKIA)
This
Criminal Appeal under Sec.374 of the Code of Criminal Procedure
(‘the Code’ for short) has been filed by the appellant-original
accused, who has been convicted to suffer rigorous imprisonment for
life and fine of Rs.500/-, in default, to suffer simple
imprisonment for three months for the offence under Section 302 of
the Indian Penal Code vide judgment and order of conviction dated
29.11.2002 delivered by the Learned Addition Sessions Judge, Fast
Track Court, Patan in Sessions Case No.397 of 2002.
The
case of the prosecution in short is that on 09.10.2000 at about
8:00 a.m., when the complainant was at his residence, he received
phone call from one Ranubhai informing him that Bhikhaji is sick
and, hence, he was instructed to reach Village : Der immediately.
In pursuance of that, the complainant along with other family
members had gone to Chadasana village, where they were informed
that Bhikhaji is killed. Thereafter, they reached the scene of
offence and saw the dead body of his son lying on cot covered with
blanket. At that time, his niece, Suryaba was also there. Upon
seeing the dead body, they found the injuries on the neck, head and
other parts of the body of the deceased. Upon making inquiry from
Suryaba, she informed them that herself and Bhikhaji had gone to
Village : Der at the residence of Gandaji, but none was present
there and, hence, they had gone to the residence of Pathuji, where
all family members were present and stayed for half an hour.
Thereafter, Gandaji came to the residence of Pathuji and invited
both of them for lunch, however, Bhikhaji said no, but ultimately,
he agreed to take lunch.
Thereafter,
they went to the house of Gandaji, where Gandaji and his brothers
were present. After some time, quarrel took place between them, at
that time, she was sitting very near to door. Thereafter, when her
uncle was taking lunch, Gandaji gave 7 blows of wooden log on the
neck of her uncle and, thereafter, he threw wooden log and took
Kasai and gave 5 blows of it on the head. As a result of that,
Bhikhaji fell down there. Immediately thereafter, she went to the
house of Pathuji to inform him about the incident, but none was
there and, hence, she went to the house of Bhikhaji’s father-in-law
and informed them about the incident and stayed there. Today, in
the morning, when she came back to see Bhikhaji then, she saw that
Bhikhaji is lying on cot and he is no more. Here in the above facts
from the Suryaba, the complainant went to Patan Taluka Police
Station and lodged the complaint to that effect, which has been
registered as I-C.R.No.230/2000 with Patan Taluka Police
Station under Section 302 of the Indian Penal Code.
Thereafter,
P.S.O. of Patan Taluka Police Station handed over the investigation
to Police Inspector of Patan Taluka Police
Station, Shri A.H. Jardosh. In pursuance of that, he started
investigation into the matter. He sent yadi to Executive Magistrate
for inquest on the body of the deceased and, thereafter, he went to
Village : Der and visited the scene of offence. As it was an
offence of visitation, he informed the superior officer. When the
Executive Magistrate reached the scene of offence, inquest
panchnama came to be drawn in the presence of panchas and,
thereafter, he made arrangement for sending dead body for
postmortem. He drew panchnama of scene of offence in the presence
of panchas, seized muddamal and recorded the statements of various
witnesses. On production of the clothe of the deceased by the
Police Constable, same were seized after following required
procedure. Thereafter, he also made search of accused and arrested
him after preparing arrest panchnama. Thereafter, the accused
expressed his willingness to produce the muddamal alleged to have
been used in the commission of offence. He therefore called the
panchas and prepared primary panchnama and went in police jeep
along with panchas, police personnel and accused. Thereafter, the
accused asked to stop the vehicle at a place and he took out the
muddamal Sikas and wooden log and handed over the same to police
and, therefore, he completed the second part of the panchnama there
itself. He sent all the muddamal to FSL for analysis and on
receiving the FSL report and postmortem note, same were kept in
investigation file.
Upon
completion of investigation, he submitted the charge sheet against
the accused in the Court of learned 2nd Joint Judicial
Magistrate (First Class), Patan.
As
the offence alleged against the accused was exclusively triable by
the Court of Sessions, the Learned
2nd Joint Judicial Magistrate (First Class), Patan
committed the case to the Court of Sessions, Patan where it
was numbered as Sessions Case No.397 of 2002 and transferred to the
Court of Learned Additional Sessions Judge, Camp at Patan for
trial.
On
production of the accused, the learned Additional Sessions Judge
framed charge against the accused vide Exh.1 on 11.06.2002. The
accused pleaded not guilty to the charge and claimed to be tried.
To
prove the case against the accused, the prosecution examined 22
witnesses. The prosecution also placed reliance upon several
documentary evidence 32 in numbering.
On
submission of closing purshis by the prosecution, Learned
Additional Sessions Judge recorded the further statement of the
accused under Section 313 of the Code qua
the incriminating question wherein the accused came out with the
case of total denial. Thereafter, on hearing, the Learned
Addition Sessions Judge, Fast Track Court, Patan, delivered the
impugned judgment, which gave rise to prefer this Criminal Appeal.
Heard
learned Counsel for the appellant-accused, Ms.Shilpa R. Shah and
learned APP, Mr.H.L. Jani for the State.
It
has been mainly argued by the learned counsel for the
appellant-accused, Ms.Shah that the prosecution has failed to prove
the guilt against the accused beyond reasonable doubt. It has been
argued that the prosecution has only placed reliance upon the
evidence of child witness viz., Suryaba, who was aged about 11
years at the time of incident.
After
taking us through the evidence of Suryaba, it is argued that her
evidence is not trustworthy, not believable and not free from
doubt. It is argued that as the child, Suryaba is not the witness
of incident, her conduct is also required to be kept in mind. It
has been argued that it is true that if the evidence of said child
witness is believable, free from doubt and trustworthy then the
Court can certainly rely upon and convict the appellant-accused,
but here in this case, her evidence is not trustworthy. As per the
evidence on record, there are 50 houses adjacent to each other and
said place is known as Thakor Madh and after the house of Gandaji,
there is adjoining house of Manaji, house of Pathuji. It has been
argued that the incident has taken place in broad day light at
about 14:30 hours and, therefore, it is very difficult to accept
the say of the prosecution that none came out from any house though
incident has taken place in front of their house. Not only that,
according to her, if we believe the evidence of Suryaba and other
then though 24 hours have passed and though third house is the
house of father-in-law of the deceased, nobody has taken care of
deceased that too also the wife of the deceased was also there. It
has been argued that, therefore, evidence of Suryaba creates doubt
in the mind of all concerned.
After
taking us through the evidence of Suryaba, she has argued that she
was not present at the time of incident as she has categorically
stated that she had taken lunch at the residence of Manaji, the
father of accused and, thereafter, there is no evidence on her part
that she went to the house of Gandaji along with her maternal uncle
and, therefore, according to her, her evidence is not free from
doubt.
Simultaneously,
she has also taken us through the oral evidence of complainant and
other witnesses and argued that all other witnesses are not the
witnesses of incident and practically, none has supported the
prosecution case.
She
has also taken us through the evidence of Chakiben, wife of the
deceased and argued that she has categorically deposed in her
evidence that after the incident, they came to know about the
incident, however, she did not go there. She has also stated that
Suryaba informed that the deceased was killed by Gandaji by giving
blow of wooden log and sikas. Showing the same, it has been argued
that in this circumstance, the evidence of child witness, Suryaba
that nobody came to save Bhikhaji for 24 hours from 2:00 p.m. to
11:00 a.m. of next day is not required to be believed.
She
has also taken us through the oral evidence of P.W.No.15,
Dr.Amrutbhai Vihabhai Patel, Exh.29, who has performed the
postmortem and argued that in para 5 of his evidence, there is no
evidence worth the name to the effect that the injuries received by
the deceased were sufficient to cause death.
Lastly,
it has been argued that at the most, it is an incident which even
as per the say of the prosecution, has taken place after the
altercation between the parties and both were in drunken condition
and, therefore, it is required to be considered as a result of
sudden provocation and in any circumstances of the matter, it
cannot be said that it is a case falling under Section 302 of the
Indian Penal Code.
Ms.Shah
has also drawn our attention that the accused has already undergone
more than 8 years and, hence, some sympathy should be shown towards
the accused.
Learned
APP, Mr.H.L. Jani, has also taken us through the oral evidence of
witnesses, upon which, reliance has been placed by the learned
counsel for the appellant-accused, Ms.Shah.
Mr.Jani
has objected the submissions made by the learned counsel, Ms.Shah
mainly on the ground that the oral evidence of child witness,
Suryaba is trustworthy and is required to be believed, but on a
material point, he has no answer regarding her conduct and also
regarding her presence at the time of incident. He has also argued
that the Court can certainly rely upon the oral evidence of child
witness as the same is trustworthy, free from doubt and believable.
After taking us through the oral evidence of Suryaba, it is
submitted that she is the witness of incident and her evidence is
required to be believed and it is a serious offence, wherein the
present deceased has been invited and killed by Gandaji and,
therefore, according to him, no lenient view is required to be
shown towards the appellant-accused.
We
have gone through the oral as well as documentary evidence shown to
us by the learned counsel for the respective parties together with
the reasoned judgment delivered by the court below.
Here
in this case, only evidence of child witness, Suryaba (P.W.No.2,
Exh.7) is required to be taken into consideration. At the time of
recording her evidence, she was 13 years and her evidence is
recorded in the month of July, 2002 and the incident has taken
place in the year 2000 and, therefore, at the time of incident, she
was 11 years. It is required to be noted that she is the child
witness and she claims herself to be a witness of incident and,
hence, her evidence is required to be scrutinized minutely and
after evaluating the same, if the Court comes to a conclusion that
her evidence is trustworthy then certainly, the Court can rely upon
and convict the accused only on the basis said evidence. For the
purpose of deciding this appeal, we have minutely evaluated the
evidence of Suryaba.
It
is established from her evidence that she and her maternal uncle,
Bhikhaji went to Village : Der at the residence of Gandaji, at that
time, it was 12:00 a.m., however, none was there and, therefore,
they went to the house of Pathuji, who is the father-in-law of
Bhikhaji, where they stayed for half an hour. Meanwhile, Gandaji
came and invited them and, thereafter, they went to the house of
Manaji, which is also adjoining of Gandaji and she stayed. She also
deposed that when Gandaji and Bhikhaji went to market, she took her
lunch at the house of Manaji and, thereafter, she was playing with
the daughter of her maternal uncle, Sajjan. Thereafter, Gandaji and
Bhikhaji came there and after some time, altercation took place
between them and at the time of taking lunch, Gandaji gave 7 blows
of wooden log on the neck of the deceased, Bhikhaji and,
thereafter, he threw said wooden log and took up Sikas and gave 5
blows of it on the head of Bhikhaji and, thereafter, he dragged him
out side the house. Immediately thereafter, she went to the house
of Pathuji, but nobody was there at that time and, therefore, she
came back and, thereafter, stayed at the residence of Manaji for
some time and, thereafter, she stayed at the residence of Vinuji
and on the next day, she came back along with Vinuji and saw that
Bhikhaji was lying on cot and Vinubhai informed Pathuji regarding
illness of Bhikhaji. In turn, Pathuji informed Ranuji and Ranuji
informed Sihori by phone at the place of Bhikhaji to his father.
She has further deposed that thereafter at 11:00 a.m., maternal
grand father came there along with other people and, thereafter,
grand maternal father went to Police Station and lodged the
complaint. She also identified muddamal Sikas into the Court as
also the appellant-accused.
Aforesaid
witness was also examined by the learned advocate before the Court
below. In her cross-examination, she admitted that there was an
altercation between the deceased Bhikhaji and his wife, Var
Chakibhai and, therefore, Chakiben was staying at her parental home
at Village : Der. She admitted that the house of Pathuji is also
situated in Village : Der and in the same Maholla along with 50
other houses, however, she denied that adjoining house of Pathuji
is the house of Manaji, but she admitted that Manaji’s house is at
a little bit distance. She also admitted that she shouted for help,
but nobody came to rescue, thereafter, she went to the house of
Pathuji and stayed there for half an hour, however, she has not
said anything regarding the incident to anybody on that day.
Thereafter, she went to the house of Vinubhai and slept there. On
the next day early in the morning, she came back to see her
maternal uncle, Bhikhaji and, thereafter, she seat there till
complainant and other came there at 11:00 a.m. She has also
admitted that Police recorded her statement after eight days at
Sihori.
Thus,
as per her evidence, she claims herself to be a witness of
incident, who was aged about 11 years at the time of incident.
It
is required to be noted that the place of incident is the house of
Gandaji and adjoining house is of father of Gandaji viz., Manaji
and next house is of Pathuji. It is to be noted that the incident
has taken place at 2:30 p.m. and as per evidence on record, there
are 50 houses situated adjoining to each other and all are from
same community. It is evident from the evidence on record that
though the deceased was assaulted and though Suryaba shouted for
help, none came to rescue the deceased. Not only that, nobody
reached the scene of offence until 24 hours and before the father
of the deceased comes.
P.W.No.19,
Varbai @ Chakiben Bhikhuji, Exh.35 who is wife of the deceased has
admitted that she came to know about the incident on the same day
and also came to know that her husband has succumbed to the
injuries. She also admitted that Suryaben came to her house and
informed them about the incident, at that time, her father, mother
and other family members were present. She has also admitted that
there are 50 house in Village : Der and her father is a leader of
party. As against this, it is to be noted that Suryaba has already
deposed that she has not informed anybody till 11:00 of next
morning till her maternal grand father and others came.
As
against this, the complainant is not the witness of incident as he
was informed by Suryaba about the incident.
Thus,
in short, as per the evidence of Suryaba, she has not informed even
Vinubhai, where she stayed whole night, not even Manaji or Pathuji
or Bachiben. Over and above this, though the incident has taken on
broad day light, though all are related to each other, though his
wife was also there in next door and though dead body was lying
there in front of the house of Gandaji, nobody has taken care to
see the deceased, which creates doubt in the mind of the Court.
Suryaba
deposed that she is much more mature, but her aged is such and with
this, whether one can act way in which, she did i.e. she stated
that her maternal uncle is no more and he succumbed to the injuries
and, thereafter, she seat down there for a considerable time. Not
only that, though shouted, none came to help her, which creates
doubt in the mind of all concerned as to whether she was there at
the time of incident or not. Simultaneously, if she was there,
whether she was present at the time of incident or not because as
per her evidence, she was playing with the daughter of Bhikhaji at
the residence of Manaji and, therefore, her claim that she is the
witness of incident also creates doubt.
Over
and above, in her evidence, there are exaggeration to that effect
that Gandaji has given seven blows of wooden log on neck of the
deceased and eight Sikas blow on head and that too also, first he
gave wooden log then threw wooden log, took Sikas and gave 5 blows
of it to the deceased. However, medical evidence is contrary to the
evidence of child witness, Suryaba as there are no injuries of
Sikas. Not only that as per the evidence of doctor, who has
performed postmortem, there are only three injuries out of which,
two fracture and one is on back side and, therefore, her deposition
to the effect that accused has given seven blows to the deceased is
exaggerated or we can say that it is concocted one. Even doctor has
not opined that the injuries received by the deceased are
sufficient to cause death in ordinary course of nature. However, we
accept that there are no evidence which connected the accused with
the crime and on detailed scrutiny of the evidence of the child
witness, we are of the opinion that her evidence is not trustworthy
and not free from doubt and, therefore, the conviction on the basis
of only on her evidence resulted into injustice to the accused and
as the evidence of Suryaba creates doubt, we give the accused the
benefit of doubt.
The
prosecution has failed to prove the discovery panchnama as the
muddamal, which have been found on public place and same were
easily available to all concerned. Over and above this, the
prosecution has not produced both weapons into the Court.
Over
and above, the appellant-accused has already undergone more than
eight years of sentence and, hence, we are of the opinion that if
we give benefit of doubt, it will meet the ends of justice.
As
far as the homicidal death is concerned, same has not been disputed
by the learned counsel for appellant-accused. Then also, we have
gone through the same and it is proved by the prosecution by way of
oral evidence of Dr.Amratbhai Vihabhai Patel, P.W.No.15, Exh.29.
Through him, the prosecution has also proved the P.M.Note Exh.30.
It
is true that it is a heinous crime, but looking to the facts and
circumstances of the case and keeping in mind the above aspect of
the matter, there is no evidence worth the name to connect the
accused with the crime in question and, hence, the benefit of doubt
is required to be given to him.
In
the result, the appeal is allowed. Judgment and Order of conviction
and sentence dated 29.11.2002 delivered by the Learned Additional
Sessions Judge, Fast Track Court, Patan in Sessions Case No.397 of
2002 are quashed and set aside. He is, therefore, ordered to be set
at liberty forthwith, if not required in any other offence.
Sd/- Sd/-
(R.P.DHOLAKIA,
J.) (K.S.JHAVERI, J.)
/patil
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