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CR.A/58819/1987 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 588 of 1987
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
======================================
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 ?
======================================
STATE
OF GUJARAT
Versus
AHER
VIJSUR DHAND ISHWARIA & OTHERS
======================================Appearance
:
Mr Maulik Nanavati, Additional Public Prosecutor for
the Appellant
Ms NITA C BANKER for the Opponents
======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 27/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
This
appeal under Section 378 of the Code by the State of Gujarat is
directed against the judgment and order dated 11.05.1987 passed by
the Additional Sessions Judge, Junagadh in Sessions Case No. 105 of
1986.
The
prosecution case relevant for the purpose of the appeal in brief is
that on 11.07.1986 at about 6:00am Badhabhai Virabhai and his mate
Jaskubhai had gone to the field of Badhabhai for tilling. When they
were working in the field, cattle belonging to the accused persons
strayed into the field and started grazing on the standing crop.
Seeing this, Badhabhai went towards the cattle, shooed them from his
field and asked accused Vajsur who was standing at the edge of the
field to be careful. Accused Vajsur got angry on being so told and
gave a blow with a dhariya. Badhabhai managed to ward off the blow
but his right thumb got sliced by the sharp edge of the dhariya.
Accused Vajsur exhorted his son, Kathad, who was standing nearby to
attack Badhabhai and thereupon, Kathad came running and gave one blow
with his spear on the right side of Badhabhai s abdomen. He gave
another blow with the spear on the left side of abdomen, which blow
pierced the body of Badhabhai. Because of the injury, Badhabhai fell
on the ground. Then accused Kunwarben gave two-three blows with a
stick on the body of Badhabhai. In the meantime, Jaskubhai and
Dadhubhai (brother of Badhabhai) came to the spot and on seeing them,
the assailants ran away. Jaskubhai removed the spear from the
abdomen of Badhabhai. Intestines were coming out of the wound and so
they tied a cloth round the body. Badhabhai was thereafter taken to
his house in a bullock-cart and from there was shifted to the
hospital where he was subsequently operated. A complaint of the
incident was lodged by Dudhabhai and the police after investigation
charge-sheeted all the accused.
Aher
Vajsur Dhana, Kathad Vasjsur and Kunwarben Vajsur were tried by the
Sessions Court on the charges under Sections 307, 323, 447, 504 read
with Section 34 of the Penal Code and acquitted.
Assailing
the judgment and order of acquittal, Mr. Maulik Nanavati, learned
Additional Public Prosecutor for the State argued that Dudhabhai
(PW-4), Jaskubhai (PW-6) and Badhabhai (PW-8) were examined by the
prosecution as eye-witnesses. They have supported the prosecution
and narrated the prosecution version. Witness Badhabhai is an
injured witness and his presence at the scene of occurrence cannot be
doubted. When he has named the assailants, it cannot be said that he
would give up the real assailants and falsely implicate innocent
persons. The evidence of an injured witness has greater evidentiary
value and unless compelling reasons exist, their statements should
not be lightly discarded. He has submitted that the evidence of
Badhabhai is corroborated by the evidence of other eye-witnesses as
well as the medical evidence. No good reasons have been given by the
learned Sessions Judge for discrediting the evidence of these
witnesses. He has submitted that the Trial Judge has proceeded on
conjectures and that there is no scope for any doubt that the
prosecution version is true. He has elaborated his submissions by
referring to the evidence on record and urged that the order of
acquittal be set aside.
The
learned Advocate appearing for the respondents while supporting the
judgment of the Sessions Court has also referred to several other
relevant features which would support the conclusion that the
incident has not happened in the manner alleged by the prosecution
and that the true and correct account of what transpired and the
circumstances under which Badhabhai sustained the injuries have not
been clearly established. The learned counsel also referred to the
evidence of Dr. Malviya (PW-7), who operated Badhabhai and
Pravinchandra Vrajlal (PW-1), Circle Inspector who prepared map of
the site of occurrence and argued that the prosecution version is
wholly unbelievable that there is suppression of material evidence
and the prosecution case has been rightly discarded by the Sessions
Court and no interference is called for.
We
have carefully considered these arguments and have gone through the
entire evidence of record. We agree with the Sessions Court that the
prosecution has not proved the case beyond reasonable doubt. The
learned Sessions Judge was right in acquitting the accused and no
interference is called for.
The
testimony of Jaskubhai appears to be highly artificial and does not
fit in with human probabilities. He had accompanied Badhabhai to the
field in the morning and was around him when Badhabhai went to remove
the trespassing cattle. He claims to have seen the assault and yet
did not do anything to save Badhabhai. Dudhabhai is a chance witness
but the reason given by him for his presence there is not very
believable. Jasku states that Dudhabhai had left with him and
Badhabhai at 6:00am and shortly before the incident had gone to an
adjoining field for some work. Dudhabhai, on the other hand, states
that he did not leave the house with his brother at 6:00am but left
around 7:30am. He also denies going to the field prior to the attack
on Badhabhai. There is also ambiguity as regards the actual place of
occurrence. Budhabhai states that he had attacked when he was
standing about 4 feet inside his field and had fallen down there.
Jasku also talks about Budhabhai falling down about 4 feet from the
edge of the field. However, the site map shows that Budhabhai had
fallen down after receiving injuries at a place which is about 37
feet from the edge of the field. Also, the site panchnama drawn
shortly after the incident does not show any sign of grazing or
damage to standing crop as stated by Budhabhai and Jasku. Even the
medical evidence is at variance with the ocular evidence. Whereas
all the eye-witnesses talk about accused no. 2 giving two blows with
spear on the abdominal region of Badhabhai one on the right side
and other on the left side, the medical evidence shows only one stab
wound entering from the left side, piercing the body and exiting from
the right side of the abdomen. Thus, the evidence of all the
eye-witnesses is contrary to the medical evidence. This raises
serious doubts as regards the credibility and trustworthiness of the
evidence of these witnesses. Further, the doctor examined by the
prosecution has also opined that coming out of intestines from the
wound could have happened because of pulling out of the spear or even
due to movement of spear while shifting the injured to the hospital.
The doctor has further opined that but for the internal injury, the
external injury otherwise is of a simple nature. Therefore, the
medical evidence is inconclusive as to whether the injury was
sufficient in the ordinary course of nature to cause death of the
victim.
The
eyewitness account of the incident as rightly pointed out by the
Trial Court does not reveal the truth and the genesis of the incident
is shrouded in mystery. Material part of the incident relating to the
attack by the accused persons is twisted or suppressed and reasonable
doubt arises as to the circumstances under which the victim received
the wound on his abdomen. We, therefore, find ourselves unable to
accept the contentions of the appellant and set aside the order of
acquittal passed by the Sessions Court. In our view, no interference
with the judgment of the Sessions Judge is called for.
In
the result, the appeal is dismissed. Bail bonds stand cancelled.
(Bhagwati
Prasad, J.)
(S.R.Brahmbhatt,
J.)
*mohd
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