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CR.A/1/2007 23/ 23 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1 of 2007
With
CRIMINAL
APPEAL No. 2810 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
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 ?
=========================================================
DAHYABHAI
AMBARAM SOLANKI (CHAMAR) - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
MRUDUL BAROT for BH SOLANKI
for
Appellant(s) : 1,
MR KL PANDYA ASST. PUBLIC PROSECUTOR for
Opponent(s) : 1,
CRIMINAL
APPEAL No. 2810 of 2008 :
Appearance
:
MR
ASHISH M. DAGLI for Appellant(s) : 1,
MR KL PANDYA ASST. PUBLIC
PROSECUTOR for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 25/02/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1.0 The
appellants, herein, came to be tried and convicted by Sessions Court,
Mehsana, in connection with Sessions Case No.125 of 2006, for the
offence punishable under Section 302, read with Section 114 of the
Indian Penal Code, for committing murder of Jagdishbhai Chhaganbhai
Solanki(Chamar)on 10.06.2006, around 8:30 p.m., in the outskirts of
Village : Matrasan, Taluka : Bechraji, on the bank of river Rupen.
The appellants are sentenced to undergo imprisonment for life with
fine of Rs.1,000/-, and in default to undergo rigorous imprisonment
for a period of three months, by judgment and order dated 8th
December, 2006.
2.0 The
prosecution case in brief is that, one Chehaji Khodaji Thakor, who
was passing by the place of incident around 8:30 p.m., on the date of
incident noticed the appellants assaulting the deceased Jagdishbhai
Chhaganbhai Solanki(Chamar) with stick. According to him, he saw the
occurrence in the ravines of river Rupen. He, however, left the
place of incident, without either intervening or raising any alarm.
Upon reaching the village, it emerges from his evidence that he came
across one Babuji on the outskirts of the village and told him about
having seen the incident. Then, he went to Pratapji Becharji
Thakor, the Sarpanch of the village Matasar and told him about having
seen the incident, who, in turn informed the Sarpanch of village :
Karansagar, Kalabhai Punjabhai Chamar. According to the witness,
thereafter, they went to the place of incident, where the deceased
was lying. The witness has stated that, at that time, the deceased
orally indicated that two persons had assaulted him. On receiving
the information, the Sarpanch of Karansagar village, also came to
the place, where the deceased was lying. The deceased was then taken
to the hospital in a tractor and then, an F.I.R. was lodged before
the Bechraji Police Station, on basis of which, an offence was
registered and investigated. Upon investigation, the police having
found sufficient evidence against the appellants, filed charge-sheet
against them in the Court of Chief Judicial Magistrate, Mehsana, who,
in turn, committed the case to the Court of Sessions, Mehsana and
Sessions Case No.125 of 2006 came to be registered.
2.1 The
charges are framed against the appellants at Exhibit-3, to which both
the accused pleaded not guilty and came to be tried by the trial
Court.
2.2 Upon
considering the evidence led by the prosecution, the trial Court
found that the case against the accused / appellants, was proved and
recorded their conviction under Section 302, read with Section 114 of
the Indian Penal Code and sentenced them, as stated in the earlier
part of the judgment.
3.0 Mr.
Mrudul Barot, learned Advocate appears for original accused No.1-the
appellant in Criminal Appeal No.1 of 2007, whereas Mr. Ashish M.
Dagli, learned Advocate appears for original accused No.2, the
appellant in Criminal Appeal No.2810 of 2008 and Mr. K.L. Pandya,
learned APP, represents the respondent-State, in both the appeals.
4.0 We
have heard the learned Advocates for the appellants and the learned
APP and have examined the records and proceedings, in the context of
the rival submissions.
4.1
The prosecution has examined eye-witness-Chehaji Khodaji Thakor at
Exhibit-25. According to this witness, his field is situated on the
‘Kacha’ road, between Matasar and Karansagar villages. He used to
stay overnight in the field to protect the crop. On the date of
incident, he was proceeding towards his field from his home at about
8:30 p.m.. At that time there was some light and he saw the
appellants beating the deceased. He noticed the occurrence because of
the sounds of beating, coming from that direction. The appellants
were beating the deceased with stick. The witness states that he is
not sure, as to who was holding the stick. He also states that, he
did not notice anything further than this. Thereafter, he went
towards the village and called the Sarpanch. He informed the Sarpanch
about the aforesaid incident and told him to inform the Sarpanch of
Karansagar. The witness further states that the deceased stated that
two persons had assaulted him. This witness has been throughly
cross-examined on the topography of the place of incident and the
distance from the place from where he saw the incident occurring. The
witness states that he was on the top of the ravine and the incident
occurred at the bottom. The distance was about 20 feet. This witness
further states that, thereafter, he went to the village and informed
Babuji about the same, without talking to anyone else. He states
that, he, then gathered the people from the village. In reply to a
suggestion that the FIR was lodged after having consultation with
other persons, the witness states that he had asked the Sarpanch to
inform the police, and then left for his field. The persons who went
to the place of incident, after it occurred, were, the eye-witness,
Sarpanch of the village Karansagar-Kalabhai Punjabhai Chamar,
Sarpanch of the village Matasar-Pratapji Becharji Thakor and brother
of the deceased, along with several other persons.
4.2 It
is stated by the witness-Kalabhai Punjabhai Chamar(Exhibit-26) that
he noticed the deceased lying on the slope of the river. Kalabhai
also states that the deceased told him that the appellants had beaten
him. This witness was subjected to cross-examination as well. He
states that he did not know that the complaint had to be lodged
immediately, therefore, he did not lodge the complaint immediately.
4.3
Pratapji Becharji Thakor(Exhibit-27) states that he was Sarpanch of
Matasar village and was working as such, for about four years, prior
to his deposition. He admitted that the victim was lying near the
road. He also noticed the deceased making some utterances, which he
could not hear, because of the distance between him and the deceased.
4.4 The
first contention raised is that, at about 8:30 p.m. in the evening,
in the outskirts of the village, there would not be sufficient light
which could have made it possible for the eye-witness to notice the
incident. The incident has occurred in the lower part of the ravine,
at a distance of about 20 to 50 feet and, therefore, the witness
could not have seen the incident. However, we have inquired from the
Indian calender, which shows that, that was a day prior to the full
moon day of ‘Jeth’ month as per the Indian calender. Therefore, there
would be sufficient moon light. Even otherwise, it would not have
made much difference, for the reason that, the people staying in
village and, particularly, who stay in agriculture fields during
nights, are used and trained to work in darkness and, therefore, no
inference can be drawn that the witness might not have seen the
incident, as it was night time.
4.5 It
is also worth noting that the Panchnama of the place of incident and
the map prepared, would go to show that there were electric light
poles, at a distance of about 40 and 150 feet. Therefore, the
argument that the witness could not have seen the incident, cannot be
accepted.
4.6 The
second fold of the argument is that, the appellants have no motive to
commit the murder of the deceased. The case of the prosecution is
mainly based on the evidence of an eye-witness and, hence, the motive
pales into insignificance.
4.7 The
second contention is that, there is discrepancy in ocular evidence
and medical evidence, so far as it relates to the injuries found on
the person of the deceased. According to the eye-witness, he saw the
appellants giving blows to the deceased with stick. He has been
throughly cross-examined on the topography and he clearly states that
the ravine is about 20 feet deep and he was on the top of the ravine
and, therefore, saw the occurrence. He admits that the incident
lasted for about 10 minutes. However, he neither intervened nor did
he raise any shouts for help. The explanation tendered by him for
not doing so is that, he was all alone and, therefore, he went away.
He, then, states that he went to the village and, on the way, he met
Babuji. He, thereafter, informed the Sarpanch of the village Pratapji
Becharji Thakor, about the incident. Upon getting information, the
other witnesses went to the place of incident and noticed the
deceased, lying on the slope of the river. The deceased was offered
water and he stated that two persons had assaulted him.
4.8 It
is argued that, there is a slight discrepancy, as one of the
witnesses stated that the deceased had given the names of the
assailants, whereas the other says that the deceased only said that
two persons had attacked him. In our view nothing turns on this
discrepancy because, besides this and dying declaration, there is
evidence to connect the appellants with the crime as would be seen
from the discussion in the paragraph to follow.
4.9 Another
contention that is raised is that according to the eye-witness, the
incident occurred at the bottom of the ravine and he saw it while
standing on the top of it, whereas the other witnesses have stated
that, they found the victim lying near the ‘Kacha’ road or on the
slope of the river. The panchnama of the place of incident indicates
that the place, where the puddle of blood was found, was at a
considerable distance from the ravines. Therefore, it is vehemently
contended that there is a discrepancy about the place of incident.
4.10 Having
read the panchnama of place of incident(Exhibit-18), and having read
the evidence of eye-witness Chehaji Khodaji Thakor(Exhibit-25) and
witnesses Kalabhai Punjabhai Chamar(Exhibit-26) and Pratapji Becharji
Thakor(Exhibit-27), we find that, although, at first glance, there
appears to be inconsistency in the evidence about the place of
incident, on close scrutiny we find that it is only a difference in
language used for describing the same place and it is clear when the
witness-Kalabhai Punjabhai Chamar(Exhibit-26) says, that he saw the
deceased lying in the slope of the river. This witness, in his
cross-examination, admits that by ‘slope of river’, he meant ‘the
bank of river’. As can be seen from the map(Exhibit-31), which is
prepared on the basis of panchnama of the place of incident, it is
clear that the place of incident is in proximity of the river on the
one side, and the ‘Kacha’ road on the other. Obviously, therefore,
when a witness describes the place of incident as ‘slope of the
river’ or ‘the bank of river’ or the ‘ravine’, it means the same
place and in our opinion, there is no discrepancy or any
inconsistency in the evidence relating to the place of incident.
4.11 Now,
insofar as the question as to whether there is any discrepancy
between the ocular evidence and the medical evidence is concerned, it
is contended that as per the ocular evidence of the eye-witness, he
saw the appellants assaulting the deceased with stick and after
seeing that for some time, he left the place of incident. The sum and
substance of the evidence of the eye-witness is that he noticed both
the appellants assaulting the deceased with the stick, against this
the medical evidence is that only one injury on the head, which is
proved to be fatal and attributable to any hard and blunt substance,
was found on the person of the deceased. If what was noticed by the
eye-witness was correct, there ought to have been multiple injuries,
attributable to a hard and blunt weapon, would have been found on the
person of the deceased and, therefore, there is inconsistency between
medical evidence and ocular evidence.
4.12 It
is not possible to accept this contention for the reason that, the
medical evidence speaks of one head injury which is proved to be
fatal. It is attributable to hard and blunt weapon like stick. The
medical evidence also speaks of several other injuries, in the form
of abrasions and bruises with contusions. Such abrasions with
contusions cannot be result of any dragging or simple fall, and
would, therefore, be attributable to a hard and blunt weapon. Thus,
we, upon giving the evidence a harmonious and legal interpretation,
find no discrepancy about the place of incident or between medical
evidence and ocular evidence on the injuries caused to the victim.
The version of the eye-witness that the incident lasted for about 10
minutes has to be treated as a mistake in assessment of time or at
the worst an exaggeration with no significance as the witness has
soon after seeing the incident reported the same to Babuji and the
Sarpanch, involving the appellants. Principle of res gestae would
thus be attracted.
4.13 It
was also contended that there was no blood on the stick, which was
allegedly discovered at the behest of one of the appellants. It is
true that there was no blood found on the stick, but, that by itself
will not abrogate the ocular evidence of the eye-witness, supported
by other contemporaneous material. The fact that, the eye-witness,
while coming towards village, immediately informed Babuji and then
Sarpanch of the village, Pratapji Becharji Thakor, about the fact
that the appellants were assaulting the deceased, would be therefore
significant and relevant. The eye-witness had no time to think over
and concoct a story and, even otherwise, there is no material on
record to show that he had any motive to do so, either. This witness,
being a third party, has neither any grievance against the accused
nor any favour towards the victim, his evidence cannot be brush aside
lightly, only on the ground of so called inconsistency in the medical
evidence.
4.14 It
is true that the FIR has been lodged late i.e. on the next day, but,
the late filing of FIR pales into insignificance, since soon after
witnessing the incident, the eye-witness has given a clear version of
the incident to one Babuji and the Sarpanch of Matasar-Pratapji
Becharji Thakor, implicating both the appellants and that fact stands
duly proved.
4.15 The
next important factor, which requires consideration is that clothes
of original accused No.1-Jagdishbhai Khusalbhai Solanki(Chamar), have
been found to be stained with blood, when they were recovered by
drawing Panchnama(Exhibit-20), and the said blood stains, after
chemical analysis by FSL, were found to be of blood group ‘B’, which
is found to be the blood group of the deceased. Even the shirt of
original accused No.2-Dahyabhai
Ambaram Solanki (Chamar)was also found to be stained with blood.
However, upon chemical analysis by FSL, the blood group of those
blood stains could not be ascertained.
4.16 The
ultimate outcome is that the incident is seen by the
eye-witness-Chehaji
Khodaji Thakor, the clothes of original accused No.1 are found to be
stained with the blood of that of the deceased,
and there is no discrepancy about the nature of injuries, as
described by the eye-witness and the Doctor. The suspicion that, the
night being dark on the day of incident, restricting the vision, also
gets ruled out, because by way of contemporaneous material, we have,
upon referring to the calender found that it was the day prior to the
full moon day. The fact that, eye-witness informed Babuji and the
Sarpanch of the village Matasar-Pratapji Becharji Thakor,
immediately, about having seen the incident would wipe out the effect
of minor discrepancies indicated. Even, when the deceased was taken
to Dr. Jignesh Rameshchandra Modi(Exhibit-12), the history was given
that the appellants have assaulted the deceased, which was recorded
by him in Medical Certificate(Exhibit-13). The evidence proves active
participation by both the appellants, in the incident, as can be seen
from the evidence of Chehaji Khodaji Thakor(Exhibit-25) and,
therefore, the trial Court was justified in invoking
Section 114 of the Indian Penal Code, while recording conviction. The
medical evidence clearly indicates that the injuries were sufficient
enough in the ordinary course of nature, to cause death and are
possible with the muddamal ‘stick’. This aspect has gone
unchallenged. The resultant effect is that both the appeals have to
fail.
4.17 At
this stage, Mr. Ashish M. Dagli, learned Advocate for original
accused No.1, has invited attention of this Court to a decision of
the Supreme Court in Shrishti Narain Jha Vs. Bindeshwar Jha
and Ors. reported in
(2009)6 SCC 457, to support the argument that the discrepancy in the
version of eye-witness and the medical evidence, would result in
acquittal.
4.18 The
principle of law enunciated by the Supreme Court in the
above-mentioned judgment, is not disputed. However, on a perusal
thereof, we find that, while recording acquittal, apart from the
discrepancy in the version of eye-witness and medical evidence,
several other factors i.e. longstanding enmity between the parties,
the nature of injuries being not attributable to the weapons alleged
to be used etc., were also taken into consideration by the Apex
Court, which facts are absent in the case on hand, and therefore, the
said judgment would not help the appellants.
4.19 Mr.
Dagli has further relied on another decision of the Apex Court in
Prabir Mondal & Anr. Vs. State of West Bengal
reported in 2010 Cri.L.J. 444. In that case, the prosecution led a
specific theory that the complainant suffered injuries, while he
tried to prevent the accused, by holding the blade of a knife.
However, no injury was found on the palm of the complainant by the
Doctor, who examined him. Moreover, the blood
stained knife and mat, recovered from the place
of incident, were not sent to FSL. The Apex
Court, therefore, held that the possibility of
fabrication cannot be ruled out, and set aside the
conviction.
4.20 In
the instant case, in our opinion, the situation is quite different
from the one emerging in the case mentioned above. In the case on
hand, the injuries found on the body of the deceased, tally with the
weapon alleged to be used by the appellants. Besides that, the
version given by the eye-witness, implicating both the appellants, is
consistent and is also supported by contemporaneous material
and, therefore, this judgment will also not come to the help of the
accused persons.
4.21 Mr.
Mrudul Barot, learned Advocate for original accused No.2, has also
invited our attention to a decision of division bench of this Court
in Rolia Jamal Ratwa Vs. State of Gujarat
reported in 2000(2)GLR 1364,
wherein the division bench
found that there were discrepancies in the version
given by the witness, claiming to be an eye-witness,
regarding exact place of occurrence. In
that case, the Court held that, in view of the diversions and
inconsistencies in the statements of the witnesses, none of the
witnesses can be said to be an eye-witness, and the appellant was
given the benefit of doubt.
4.22 In
the present case, as discussed hereinabove, there is no inconsistency
regarding the place of incident, but, it is only the difference in
language, which is used by different witnesses to describe the place
of incident, which gives an impression that, there is inconsistency
about the place of incident and, hence, this judgment will also not
come to the rescue of the accused persons.
5.0 For
the reasons stated hereinabove, both the appeals fail, and are
dismissed. The judgment and order of the Sessions Court, Mehsana,
dated 8th
December, 2006, passed in Sessions Case No.125 of
2006, stands confirmed. The
original accused No.2-Dahyabhai
Ambaram Solanki (Chamar) is on bail,
his bail bonds
stand canceled. The original accused No.2 shall surrender before the
Jail / competent Authority, within a period of FOUR
WEEKS,
from today.
(A.L.DAVE,
J.)
(H.N.DEVANI,
J.)
Umesh/
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