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CR.A/416/2007 18/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 416 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================================
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 ?
=========================================================
CHOHLA
AMRABHAI TEJABHAI – Appellant(s)
Versus
THE
STATE OF GUJARAT & 1 – Opponent(s)
=========================================================
Appearance
:
MR
YATIN SONI for Appellant(s) : 1 – 7.
MR MAULIK G NANAVATI APP for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 28/06/2010
CAV JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
An
incident occurred on 21.4.2005 at about 13-15 hours in Subhashnagar
chowk area of Bhavnagar where it is alleged that one Vipul @ Munno
Chandubhai Sarvaiya was attacked by, in all, 13 persons. Out of these
13 persons, three were juvenile and, therefore, were referred to the
Juvenile Justice Board. They were (i) Pancha Bharwad, (ii) Lala Kava
and (iii) Rohit Nanji. They were alleged to be armed with stick,
knife and stick respectively. The following persons came to be tried
by the Sessions Court, Bhavnagar in Sessions Case Nos.152 of 2005 and
215 of 2005. They are –
(i) Amrabhai
Tejabhai
(ii) Chithar
Tejabhai
(iii) Bhopa
Tejabhai
(iv) Tino
@ Karsan Tejabhai
(v) Natha
Tejabhai
(vi) Bhima
Tejabhai
(vii) Raju
Devabhai
(viii) Naran
Bharwad
(ix) Deva
Panchabhai
(x) Rana
Panchabhai
1.1 They
were all charged with offence punishable under Sections 302, 144,
147, 148, 149 of IPC and Section 135 of the Bombay Police Act. They
pleaded not guilty to the charge and claimed to be tried.
Considering the evidence led by the prosecution, the trial Court
found that the prosecution failed to prove case against original
accused Nos.8, 9 and 10, namely, Naran Bharwad, Deva Panchabhai and
Rana Panchabhai respectively. The trial Court, therefore, acquitted
them of the charges. On the other hand, the trial Court found that
the prosecution succeeded in proving the case against rest of the
accused i.e. accused Nos. 1 to 7 and convicted them of offence
punishable under Sections 302, 144, 147, 148, 149 of IPC and Section
135 of the Bombay Police Act. They were sentenced to imprisonment for
life with a fine of Rs.500/- each, in default, to undergo SI for 15
days for the offence punishable under Sections 302, 144, 147, 148 and
149 of IPC, whereas for the offence punishable under Section 135 of
the Bombay Police Act they were sentenced to imprisonment for one
month with a fine of Rs.250/-, in default, SI for 5 days. The
sentences were ordered to run concurrently. This decision was
rendered by judgment and order dated 22.11.2006 and hence this
appeal. The convicts, original accused Nos. 1 to 7, have preferred
this appeal.
1.2 It
would be appropriate to note that appellant No.6, Bhima Teja, had
absconded pending the appeal. However, he has now been restored to
the prison, whereas accused No.7, Raju Deva, is still absconding.
Rest of the persons are in jail.
2. As
per the prosecution case, the incident was witnessed by Harshaben
(Exh.77) who is mother’s sister of the deceased and witnesses
Laljibhai (Exh.86) and Pareshbhai (Exh.87). FIR was lodged by
Harshaben and, according to her, while she was going to see her
sister along with the deceased, the appellants along with the
acquitted accused and the juvenile offenders attacked the deceased.
They were all armed with deadly weapons like sword, knife, gupti,
koyto, sickle and sticks. They collectively attacked the deceased and
the deceased succumbed to the injuries. He was taken to the hospital
by the complainant and others, where he was declared dead. On the
basis of the FIR lodged by Harshaben (PW-27), offence was registered
and investigated by ‘B’ Division Police Station, Bhavnagar. After
investigation, the investigating agency having found sufficient
material connecting the accused persons filed a charge-sheet in the
Court of CJM, Bhavnagar who, in turn, committed the case to the Court
of Sessions and additional charge-sheet was filed, as some of the
accused were absconding, and that is how two Sessions cases, namely,
Sessions Case No.152 of 2005 and 215 of 2005 came to be registered.
Charge was framed against the accused persons at Exh.18 to which they
pleaded not guilty and claimed to be tried. At the end of the trial,
the trial Court gave the verdict, as stated hereinabove.
3. Heard
learned advocate Mr Soni for the appellants and learned APP Mr Maulik
Nanavati for the respondent-State.
4. Learned
advocate Mr Soni submitted that whole of the prosecution case is a
piece of concoction. According to Mr Soni, though, as per the
prosecution case, there were three witnesses, two of the independent
eye-witnesses have not supported the prosecution and the story
canvassed by the third eye-witness, first informant, Harshaben is not
believable. Her version about the incident gets no corroboration from
any other piece of evidence. On the contrary, her version becomes
doubtful in light of the medical evidence. Mr Soni submitted that
the first informant herself has sworn an affidavit to show that the
investigating agency did not record her FIR as stated by her. Not
only that, she adds that names of certain persons were included in
the FIR as the assailants, though she had not given their names. Mr
Soni submitted that the investigation, therefore, is not independent
and unbiased. Keeping this aspect in mind, if evidence of Harshaben
is seen, Mr Soni submitted, that there are several contradictions,
which in the ordinary course may not be so significant, but in the
facts of this case, would assume significance. The contradictions
individually may not be significant but collectively they would
render the prosecution case unbelievable or at least would bring the
case under shadow of reasonable doubt. Mr Soni submitted that as per
the say of Harshaben she and the deceased started off from home
immediately after taking meals and within few minutes thereafter the
incident occurred. Necessarily, therefore, there should be presence
of food in the stomach of the deceased. However, the stomach was
found to be empty, which would mean that the food was taken at least
2 to 3 hours prior to death as admitted by the doctor. Harshaben is,
therefore, not telling the whole truth. Similarly, about the timing
of Harshaben going to her sister’s place, there are contradictions.
This would be important, according to Mr Soni, because her presence
itself is doubtful.
4.1 Mr
Soni submitted that FIR is given belatedly after deliberations. When
the deceased was taken to the hospital and the Doctor inquired about
the names of the assailants, he failed to get the names. Similar was
the situation so far as police officer is concerned. If first
informant was an eye-witness to the incident, she would have
certainly revealed the names of the assailants at that very point of
time. Mr Soni, therefore, submitted that the whole prosecution case
is nothing but concoctions and, therefore, the trial Court erred in
holding that the prosecution proved the case against the seven
appellants beyond reasonable doubt.
4.2 Mr
Soni submitted that the appeal may, therefore, be accepted and the
appellants be acquitted of the charges levelled against them.
5. The
appeal is opposed to by learned APP Mr Nanavati. According to the
learned APP, the evidence of Harshaben needs serious consideration.
It is true that two other eye-witnesses have not supported the
prosecution case but that, by itself, would not render evidence of
Harshaben doubtful. The contradictions or discrepancies which are
pointed out by the learned advocate for the appellants are minor and
insignificant and do not affect the prosecution case. The appeal may,
therefore, be dismissed.
6. We
have examined the record and proceedings in the context of rival
submissions.
6.1 It
may be mentioned, at this stage, that accused No.7 is absconding.
However, since other convicts are in jail, it is expedient to hear
and decide the appeal without waiting for accused No.7 to be brought
before the Court, particularly when he is represented by an advocate
and, therefore, his interest would be protected. Abscondence is an
independent offence by itself and for that action shall be initiated
separately. This need not deter us from hearing and deciding this
appeal in above stated fact situation regarding other convicts.
7. Interestingly,
the prosecution has examined, in all, 38 witnesses, out of which,
only 12 witnesses have supported the prosecution case and rest of the
witnesses have been declared hostile to the prosecution. Out of the
12 witnesses supporting the prosecution case, four are police
officers, two are doctors, two are government servants and four are
private witnesses. Out of the four private witnesses, who support the
prosecution case, only one witness i.e. first informant, Harshaben
is an eye-witness. The evidence of rest of the three witnesses does
not throw any light on the prosecution case or does not strengthen
the case in any manner.
8. Differently
put, out of the 12 supporting witnesses, only one witness, has
personal knowledge about the incident. Against this, the prosecution
had projected two other witnesses as eye-witnesses to the incident,
namely, Laljibhai (Exh.86) and Pareshbhai (Exh.87) who have not
supported the prosecution case and have been declared hostile.
9. The
above analysis would go to show that the entire prosecution case
depends on evidence of first informant Harshaben (Exh.77). In such a
situation, it would be prudent to give a close scrutiny to such
evidence before accepting the same as truthful and reliable. It will
have to be tested with other available corrective and contemporaneous
evidence.
10. Harshaben
is examined as PW-27 at Exh.77. According to her, she had gone to
Subhashnagar chowk at her parental house and after having lunch she
and Munno, the deceased, started off together. Munno is her sister’s
son. They had started off together for going to the house of
Sarojben. When they reached near Subhashnagar chowk, Raju Deva and
Pachabhai along with other persons came there and dragged Munna and
thereafter assaulted him. There were about 8 to 10 other persons
belonging to Bharwad community and none of them paid any heed to the
request made by them. A sword blow was given on the neck of the
deceased. Amra Teja, Raju Deva and Pancha Sajan were armed with
sword. Rest of the brothers of Amra Teja also indiscriminately
assaulted the deceased. The deceased fell to the ground. The witness
says that she went for calling her sister and mother and then went to
the place of incident in an auto-rickshaw. The deceased repeatedly
requested to leave him but Pancha Sajan and others persisted the
assault.
11. The
witness has been cross-examined at length where she states that they
had started off after having lunch at about 12-15 to 12-30 p.m.. It
also emerges from her cross-examination that clothes of the first
informant, Harshaben, and other persons who took the deceased to the
hospital in an auto-rickshaw were not stained with blood, although it
emerges that the deceased had bled profusely. It also emerges that
her mother and sister had taken Vipul @ Munno (the deceased) in their
lap. From the cross-examination of this witness, it also emerges that
the FIR was lodged at about 1-30 p.m. and her signature was obtained
around that time. She admits that names of the assailants were
written by the police in the FIR.
12. Before
going further, it would be appropriate to refer to Exh.80, which is a
communication written by first informant, Harshaben, to PI, ‘B’
Division Police Station, Bhavnagar where she states that her FIR is
not recorded as dictated by her and that she has not involved, (i)
Ranabhai Panchabhai Bharwad (ii) Devabhai Panchabhai Bharwad, (iii)
Lalabhai Kavabhai Bharwad, (iv) Rohitbhai Najabhai Bharwad and (v)
Naranbhai Chhothabhai Bharwad. She states that these five persons are
not involved in the incident at all. The communication indicates that
these five persons had not participated in the incident at all and
have not committed any offence. She has stated that the names of
these persons have been incorporated in the FIR by somebody with a
view to weaken the prosecution case. The application is supported by
an affidavit sworn by the first informant. The affidavit is on same
lines, which is sworn on 3.6.2005. The FIR is on record at Exh.78
wherein these five persons are attributed with weapons and a specific
charge of assault by them is made.
13. Keeping
the above evidence in mind, if the case of the prosecution is
appreciated, it has to be recorded that barring the first informant,
Harshaben, two other eye-witnesses have not supported the prosecution
case. Majority of the other independent witnesses have chosen not to
support the prosecution case. Such witnesses are mainly the Panch
witnesses. The discovery, recovery etc., therefore, cannot be said to
have been properly proved by the prosecution.
14. The
evidence of solitary eye-witness, Harshaben, cannot be outrightly
rejected, but would certainly call for a closer scrutiny. In the
backdrop of the nature of evidence, decision of lives of so many
persons cannot be taken without giving a close scrutiny to the
evidence of solitary eye-witness. At the same time, evidence of
eye-witness in such cases, cannot be rejected only because other
witnesses have not supported the prosecution case. To assess whether
the evidence of solitary eye-witness, Harshaben, inspires confidence
or not, we will have to examine other pieces of evidence led by the
prosecution.
15. The
evidence in the form of a letter addressed by the first informant to
PI, ‘B’ Division Police Station on 2.6.2005, which is on record at
Exh.80 and supported by an affidavit, would indicate that the FIR is
not recorded by the police agency as given by the first informant and
has falsely implicated at least five persons. The matter does not end
by incorporating names of such persons, but such persons are
attributed specific weapons and specific role in the FIR. This would
mean that the investigation is not carried out independently and
without bias. This is the case of the first informant herself. If
five persons are falsely included in the FIR by the police agency, it
would be unsafe to proceed on a premise that the rest of the evidence
is honestly collected and is genuine. Possibility of a total
concoction cannot be ruled out.
16. With
the above major defect in the prosecution case, the evidence of
eye-witness, Harshaben, has to be assessed. This, we say, because
certain discrepancies which may be considered as insignificant
ordinarily, would be of relevance and significance in the instant
case.
17. According
to the first informant, Harshaben, she went to her parental house as
she wanted to visit her another sister. She has stated that she left
her home at about 11-30 a.m. to 12 noon and that it takes about half
an hour to reach her parental home from her home. Against this,
witness, Mitesh, who is her sister’s son (Exh.90) states that
Harshaben came to his house at about 9.00 to 9.30 a.m. in the
morning.
17.1 Similarly,
according to Harshaben, she had her meals along with the deceased at
about 12-15 to 12-30 hours and thereafter they left and the incident
occurred at about 1-15 p.m., meaning thereby, the time lag between
meals and the incident was about 45 minutes. Against this, the
Doctor’s evidence is that the stomach of the deceased and the
intestines were empty. The Doctor has also stated that empty stomach
would mean that the deceased must have taken meals at least 2 to 3
hours prior to his death. The medical evidence, therefore, not only
does not corroborate the version of the eye-witness but to an extent
falsifies the evidence.
17.2 Similarly,
about the timing of the FIR, the version of the first informant,
Harshaben, is inconsistent. At one stage, it is stated that she put
her signature at about 1-30 to 2-00 p.m. in the hospital, whereas the
PSI in his evidence has stated that he reached the hospital at about
2-40 p.m. and thereafter made inquiries about the details of the
assailants. The officer, who recorded the FIR, Mahendrasinh Parmar
(Exh.113) states that he recorded the FIR after the Inquest Panchnama
was drawn. The Inquest Panchnama is at Exh.31, which is drawn between
15-00 to 15-50 hours. Obviously, therefore, the FIR was after 15-50
hours. The evidence of the first informant about giving the FIR is
also inconsistent. It also emerges from the evidence of the officer
who recorded the FIR, namely, Mahendrasinh Parmar (Exh.113) that he
made inquiries about the names of the assailants upon going to the
hospital but nobody disclosed the same. The first informant also
admits that she did not give the names of the assailants with weapons
but they were written by the police. She in terms states that the
names of the assailants were written by the police.
17.3 Similarly,
the Doctor before starting the post-mortem had made inquiries from
police for about 5 to 10 minutes about the details of the assailants
but the same were not disclosed to him by the police. The
post-mortem notes indicate that the post-mortem was carried out
between 5-30 p.m. and 8-20 p.m. on 21.4.2005. This would indicate
that till that point of time names of the assailants were not known.
If this be so, the FIR which purports to have been recorded prior to
the time of post-mortem either may not have been recorded at that
point of time or the names of the assailants are subsequently
incorporated by fabricating a new FIR. The first informant is
inconsistent about the time of signing of the FIR. This would go to
the root of the prosecution case. This would also lend credence to
the allegation of the first informant in the communication that the
FIR is not recorded as given by her and that at least five persons
have been falsely added.
17.4 The
first informant does not disclose names of the assailants either
before the doctor or before the police on being inquired initially.
She has even admitted that she did not know names of the assailants
at the time of the incident, but in the next breath she realises the
effect of it and corrects herself by saying that she had the
knowledge of the names of accused assailants.
17.5 It
is also worth to note that there are no marks of blood on the clothes
of the first informant, although she states that she took the victim
to the hospital. Considering the nature of injury and profuse
bleeding, as emerging from the evidence, it is difficult to believe
that her clothes would not be stained even though she took the victim
to the hospital in an auto-rickshaw.
18. The
above defects in the evidence of the first informant render her
deposition not reliable. The investigation also does not inspire
confidence. Possibility of false implication cannot be ruled out
adopting the safest standards of reasonable time. In our opinion, the
trial Court erred in relying on the prosecution evidence and
convicting the appellants. On same set of evidence it is accepted
that accused Nos.8, 9 and 10 may not have been party to the incident
and on the same set of evidence involvement of others is accepted.
The entire prosecution case hangs on scant evidence of first
informant, Harshaben, which suffers from various defects as discussed
hereinabove and, therefore, the conviction cannot be upheld.
19. The
appeal deserves to be allowed and the same is allowed. The judgment
and order dated 22.11.2006 rendered by the learned Presiding Officer,
Fast Track Court No.3, Bhavnagar in Sessions Case Nos.152 of 2005 and
215 of 2005 is set aside. The appellants are acquitted of the
charges levelled against them. They shall be set at liberty
forthwith, if not required in any other case. Fine paid, if any,
shall be refunded.
(A.L.
DAVE, J.)
(HARSHA
DEVANI, J.)
zgs/-
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