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CR.A/46/2004 47/ 47 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 46 of 2004
With
CRIMINAL
APPEAL No. 2051 of 2004
With
CRIMINAL
REVISION APPLICATION No. 784 of 2004
With
CRIMINAL
APPEAL No. 475 of 2005
With
CRIMINAL
APPEAL No. 2016 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
Yes to all Sessions Courts
of
the State
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
NARENDRA
@ GATU BAPUR PARVATSINH PUWAR - Opponent(s)
=========================================================
Appearance :
MR
LB DABHI, APP for
Appellant(s) : 1,
MR JM BUDDHBHATTI for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 21/07/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
As
in all the matters, the facts are interlinked, they are being
considered by this common judgement.
We
have considered the record and proceedings of the trial court. We
have heard the learned APP for the State and we have heard the
learned counsel appearing for the respondents-accused.
Criminal
Appeal No.46/04 is preferred by the State against the judgement and
order passed by the learned Sessions Judge dated 16.09.2002 in
Sessions Case No.123/02, whereby accused Narendrasinh @ Gatu Bapu
Parvatsinh Puvar has been acquitted for the offences under sections
143, 148, 302 read with section 149 of IPC, under section 323 read
with section 149 and under section 436 read with section 149 of IPC.
Criminal
Appeal No.2051/04 is preferred by the State against the judgement
and order dated 31.03.2004 passed by the learned Sessions Judge in
Sessions Case No.393/02, whereby four accused, viz., Krushnapalsinh
Kishorsinh Puvar, Pradip Somsinh Chauhan, Chattrapalsinh Somsinh
Chauhan and Shanabhai Motibhai Khant (hereinafter shall be referred
as A1 to A4 of Sessions Case No. 393/02 respectively) have been
acquitted for the offence under sections 302, 395, 396, 307, 436,
435, 120B, 295 of IPC read with section 135 of the Bombay Police
Act.
Criminal
Revision Application No.784/04 is preferred by the original
complainant/informant for quashing and setting aside the judgement
and order dated 31.03.2004 passed by the Sessions Judge in Sessions
Case No.393/02 which is also subject matter of the appeal being
Criminal Appeal No.2051/04.
Criminal
Appeal No.475/05 as well as Criminal Appeal No.2016/05 arise against
Judgement and Order passed by the learned Sessions Judge in Sessions
Case No.225/04 dated 24.02.2005, whereby the appellant of Criminal
Appeal No.475/05 as well as the appellant of Criminal Appeal
No.2016/05 have been convicted for the offence under sections 304
Part II, 436, 435 of IPC and the sentence has been imposed upon both
the accused for 10 years imprisonment with the fine of Rs.250/- and
further imprisonment of 15 days in lieu of the fine.
COMMON
COMPLAINT
As
per the prosecution case, on 01.03.2002, the complainant Mohammad
Hanif Abdulrahim Sheikh lodged the complaint with PSI, Kadana Divda
Camp of Santram Police Station stating that on 01.03.2002, when the
complainant and his wife Zubedabibi Mohammedali Sheikh, his son
Maqsood, Maqbool and Mustaq, Salma, wife of Maqbool, and her two
young children Faizan and Naziyabanu were at their residence at
about 12.45, there was shouting from all the four corners and mob
surrounded and started stone throwing. Therefore, they had closed
all the doors and were inside the house. At that time, a crowd of
about 100 to 150 persons broke open the door and they had the weapon
of sword (Dharia) and pipes and they came prepared with the fire
rags. In the stone throwing, he had sustained minor injury and his
son Maqbool was beaten with the iron pipes and he sustained
injuries. When Maqbool carried Mustaq outside since he was
handicapped, he was beaten with sticks and the wife of Maqbool also
sustained injuries on the head because of stone throwing and
Naziabanu sustained minor injuries in the stone throwing. At that
time, when Maqsood requested with folded hands, the crowd poured
kerosene over him and a blow of stick was given over his head and as
a result thereof, he became unconscious and thereafter, the fire was
set and he expired. The house was also set on fire. It was stated
by him that in the said incident, he had seen Tikubapu, Pradipbapu
ST driver, brother of Pradipbapu who is running jeep and one Makno,
vegetable merchant whose name is not known to him, but he can
personally identify and Saniyo driver who was also identified and
other bapus of Pan Galla of Divda village were identified by him.
The complaint was registered vide C.R. No.34/02 of Santrampur Police
Station.
The
police had investigated and the charge-sheet was filed against
Narendrasinh @ Gatu Bapu Parvatsinh Puvar, which was registered as
Sessions Case No.123/02 and thereafter, supplementary charge-sheet
was filed against four persons viz., Krushnapalsinh Kishorsinh
Puvar, Pradip Somsinh Chauhan, Chattrapalsinh Somsinh Chauhan and
Shanabhai Motibhai Khant, which was subsequently registered as
Sessions Case No.393/02.
CRIMINAL
APPEAL NO.46/04(SESSIONS CASE NO.123/02)
In
Sessions Case No.123/02, the evidence was led by the prosecution and
the documentary evidence was produced by the prosecution in order to
prove the guilt of the accused of the said case. The learned
Sessions Judge thereafter, recorded the statement of the accused
under section 313 of the Cr.P.C. wherein the accused admitted the
evidence taken of the complainant, recorded before him and he denied
for leading of any evidence by him and he also denied for
examination of any defence witness. The learned Sessions Judge,
after hearing the complainant as well as the accused, passed the
judgement and order whereby he has acquitted the accused as referred
to hereinabove and under these circumstances, the appeal being
Criminal Appeal No.46/04 before this Court preferred by the State
against the aforesaid acquittal.
The
evidence led on behalf of the prosecution as found by the learned
Sessions Judge is proved to the extent of causing death of the
deceased Maqsood by the mob and as per the inquest panchnama, the
place of offence, the evidence of Doctor Jayant Nagardas Solanki,
P.W.4, Exh.12, the deceased had sustained injuries. The body was
burnt upto first and second degree and the cause of death is due to
the burn injuries sustained by the deceased. Therefore, the learned
Sessions Judge has rightly found that there was unlawful assembly
and the members of the unlawful assembly have caused death of the
deceased and have also caused damage to the properties of the
complainant and his family members. However, the learned Sessions
Judge while examining the aspects as to whether the accused can be
held responsible for the said offence or not, has found that the
presence of the accused was not proved and it is that part of the
observations made by the learned Sessions Judge, which is required
to be examined in the present appeal.
The
prosecution has examined Mohammed Hanif Abdulrahim Sheikh, P.W.1,
Exh.8 as well as Maqbool Mohammed Hanif Sheikh, P.W.2, Exh.10, who
are eyewitnesses to the incident. Both the witnesses have supported
the case of the prosecution to the extent of causing death, but
Mohd. Hanif Abdulrahim Sheikh, father of the deceased in the
examination-in-chief stated that he is not aware about the name of
the person who had called him since he had hided himself inside the
house. He also stated that he did not identify any of the person in
the mob. He also stated that he had not seen the blow given to his
son with any weapon. He confessed that the police complaint was
given and the names were also given in the complaint, but he states
that he was not knowing those persons. The said witness as was
found not supporting the case of the prosecution, the learned
Special PP was permitted to put the question to be asked in the
cross-examination and he stated that it had neither happened nor in
the complaint he had mentioned that in the incident Tikubapu,
Pradipbapu ST driver, brother of Pradipbapu who is running jeep and
the other person who is selling vegetable belonging to Math village
and other persons whose names are not known to him, but can be
identified, were there. Saniyo driver, resident of Saliya Muvadi
was also identified. The other Bapus of Pan Galla of Divda village
were also identified . He also stated that he is not knowing
about the person who set his shops on fire. He denied that he was
giving deposition to save the accused.
The
other witness Maqbool Mohammed Hanif Sheikh, P.W.2, Exh.10, brother
of deceased, in his examination-in-chief stated that he is not aware
about the blow given by him since he was not knowing anyone. He
also stated that he is not in a position to identify the person who
gave the blow and set fire upon his brother Maqsood and he also
stated that the person who attacked upon them can be identified but
they are not present in the Court. He denied the police having
recorded his statement. As the witness was not supporting the case
of the prosecution, the learned Special PP was permitted to put the
question which could be asked in the cross-examination. Thereafter,
he has denied the statement recorded by the police stating that
Ramesh Vagadia had given a blow to me with the pipe and I had
fallen down . He stated that it had neither happened nor his
statement was recorded that my wife had requested with folded
hands and at that time, Saniyo driver of Saliya-Movadi village had
poured 5 litres of kerosene carbo over her, therefore her deceased
brother Maqsood had asked her to run away and she had come inside
the bungalow. At that time, Pradip and his younger brother whose
name is not known who are sons of Tikubapu and Somsinhbapu,
Pradipbhai and his younger brother whose name is not known, Saniyo
driver and one vegetable vendor of Math village and Jaideep driver
of Radhanpur surrounded Maqsood and they pulled him out of the
bunglow and took him to the road and set on fire and therefore, he
expired due to burning . The said witness stated that it had
neither happened nor his statement was recorded that again Saniyo
driver had came with the sword and he attempted to attack his father
and blows of sword were given on Suzuki and his father was saved.
At that time, Suzuki was set to fire and was burnt. Thereafter, he
had started shouting on the road that Sheikh is alive and he must be
cut . He denied that he is giving false deposition to save the
accused.
The
third witness examined is Zubedabibi Mohammedali Sheikh, P.W.3,
Exh.11. The said witness in the cross-examination has stated that
she had not seen who were there in the mob. She did not identify
anybody in the mob and they had hided themselves in the gallery.
She stated that she is not knowing about the persons who had given
blow to their family members. She also stated that she is not
knowing the person who had pulled her son and given blow to her son.
She also stated that she is not knowing as to who had poured
kerosene on Salma, wife of his son. She stated that my husband has
not given any name of the assailants and she had also not given any
name orally in the police statement. She also stated that my husband
or my son or my son’s wife Salma has not identified any person from
the mob.
In
view of the aforesaid testimony of the three witnesses who were
present at the time of the incident, it can be said that the
involvement of the accused Narendrasinh @ Gatu Bapu Parvatsinh Puvar
in the incident for which he was charged is not proved. Hence, as
such, it cannot be said that the learned Sessions Judge has
committed error in acquitting the accused of Sessions Case No.123/02
by the impugned Judgement and Order which is subject matter of
appeal No.46/04.
CRIMINAL
APPEAL NO.2051/04(SESSIONS CASE NO. 393/02)
This
sessions case arose on account of the supplementary charge-sheet
filed in connection with the same complaint filed by the
complainant. The prosecution in order to prove the guilt of the
accused examined 9 eye witnesses and produced 25 documentary
evidences. The details of the same are available in para 3 of the
judgement of the learned Sessions Judge. The learned Sessions Judge
thereafter had recorded further statement of the accused under
section 313 of the Cr.P.C., wherein the accused denied the evidence
against them. The learned Sessions Judge thereafter, heard the
prosecution as well as the accused and thereafter, has passed the
judgement and order, whereby the accused, as referred to
hereinabove, have been acquitted for the offences charged against
them. Under these circumstances, the present appeal being Cr. Appeal
No.2051/04 before this Court.
The
prosecution has examined Mohammed Hanif Abdulrahim Sheikh, injured
witness and father of the deceased, P.W.1, Exh.18, Maqbool Mohammed
Sheikh, P.W.2, Exh.20, Zubedabibi Mohammedhanif Sheikh, P.W.3,
Exh.21 and Salmabibi Maqbool Sheikh, P.W.4, Exh.22. In the
deposition of Mohammed Hanif Abdulrahim Sheikh, P.W.1, Exh.18, in
the examination-in-chief, he has narrated the incident of the mob
of 100-150 persons. He stated that he had not identified who were
the persons in the said mob. He admitted the complaint, but he has
further stated that the names were given in the complaint since
their names were being shouted and therefore, on that basis, the
names were given in the complaint. In the cross-examination, the
said witness has stated that he had not seen the accused in the mob.
He stated that since he was so disturbed at the time of the
incident and the police came and he was asked to give complaint and
therefore, the complaint was given. He also stated that as the
names were being shouted by the mob, he had given the name, but he
did not personally see any of the accused on that day. He also
specifically stated that he had not seen accused Krushnapalsinh,
Pradipbabu, Chatrapal and Shanabapu beating his family members nor
he had seen the said accused for damaging his shop or setting fire.
In
the examination-in-chief of Maqbool Mohd. Sheikh, P.W.2, Exh.20, who
is injured witness as well as the brother of the deceased, he had
stated that his brother was assaulted and who has set fire to his
brother Maqsood is not personally known to him. He stated that he
is not having personal knowledge about the person who poured
kerosene upon his wife. He also stated that he is not having any
personal knowledge about the name of the persons who had caused
injury with the stone to his father. He stated that the police had
made an inquiry and the statement was recorded. Thereafter, he was
declared hostile at the request of the learned Special PP and he
denied the statement recorded before the police stating that Ramesh
Vagadia had given blow to him on the head. He also denied the
contents of the statement recorded by police about the involvement
of the accused in the incident. In the cross-examination, he
reconfirmed that as per the deposition recorded of him in Sessions
Case No.123/02, he had stated that he had not seen anybody. He
further stated that at the time of incident by the mob, what role
played was not seen by him. He also stated that in the earlier case
also, he did not identify anybody present in the Court. He stated
that today, when the accused are shown to him, he has stated that he
had not seen any of the accused present in the mob.
Zubedabibi
Mohammed Hanif Sheikh, P.W.3, Exh.21, mother of the deceased, in the
examination-in-chief stated that she has not seen who were in the
mob, since they were inside the house. She stated that she did not
see who had pulled her son out of the house. She also stated that
she had not seen who had poured kerosene upon the wife of the son.
She also stated that the accused who are shown to her were not seen
by her on that day in the mob. At that stage, she was declared
hostile and in the cross-examination she denied the statement
recorded by the police and she also denied that with a view to save
the accused, she has given false deposition before the Court. In
the cross-examination, the said witness reconfirmed that earlier she
had come to the Court for giving deposition and at that time also
she had stated that she was not knowing anything about the incident
and she had not given name of any person in the incident. She
stated that because the fire was set, she got feared and she ran
away from the house. She stated that they had gone behind the house
of Mohanbhai Sindhi who is staying on the backside of their house.
She has stated that the persons who are shown as accused were not
seen in the mob on the day of the incident. She also stated that at
the time, they had hided themselves behind the house of Sindhi, her
family members, her son, her husband and children were together.
Salmabibi
Maqbool Mohammed Sheikh, injured witness and wife of brother of
deceased, P.W.4, Exh.22, in her examination, after narration of the
incident, stated that somebody from the mob had poured kerosene and
the fire was set on the brother of her husband. She stated that she
had not seen as to who were present in the mob nor she could
identify anybody. She admitted that the police statement was
recorded. It is at that stage, she was declared hostile.
Thereafter, she admitted that in the police statement, she had
stated that one vegetable vendor of Math village who is also giving
vegetable to them had called her father-in-law and thereafter,
started abusing since the father-in-law denied to come out. The
iron pipe was thrown on the house which was caught hold by her. She
denied the contents of the statement giving name of Saniyo driver
for pouring kerosene. She also denied the contents of the statement
given before the police that Saniyo driver had assaulted her
father-in-law with the sword and blows were given on the motorcycle.
In the cross-examination, she stated that on the date of the
incident, who had given blow and who were present in the mob could
not identified by her. The persons who were present in the Court
were shown to her and she said that none of the accused were present
on the date of the incident. She stated that at the time when the
police had come, they had hided themselves behind the house of
Mohanbhai Sindhi.
The
prosecution has been able to prove the injury upon the deceased as
well as upon the other injured who are also witnesses by the medical
evidence of Jayant Nagardas Solanki, P.W.5, Exh.23 and
Dr.Rameshchandra Harijan Shrimali, P.W.6, Exh.25. I.O. Dalpatsinh,
P.W.7, Exh.30, has in his deposition supported the case of the
prosecution by bringing inquest panchnama and he also stated of
having recorded the statement of the witnesses and submitting report
to the concerned Court.
The
aforesaid goes to show that the incident is proved of the injury
received by the deceased as well as by the other injured persons.
However, so far as the involvement of the accused in the incident is
concerned, if the deposition of the aforesaid four persons who as
per the prosecution case were eye witnesses, viz. Mohammed Hanif,
P.W.1, Exh.18, Maqbool Mohammed, P.W.2, Exh.20, Zubedabibi, P.W.3,
Exh.21 and Salmabibi, P.W.4, Exh.22, have not at all supported the
case of the prosecution and on the contrary, except the complainant,
Mohammed Hanif, P.W.1, Exh.18, other witnesses were declared hostile
at the request of the learned Special PP. The complainant also for
the involvement of the accused has not supported the case of the
prosecution. All the aforesaid four witnesses have denied the
presence of the accused at the time of incident in the mob. Under
these circumstances, the finding recorded by the learned Sessions
Judge for failure on the part of the prosecution to prove the case
for guilt of the accused in the alleged incident for which they were
charged, cannot be said to be erroneous. Hence, as such, it can be
said that the learned Sessions Judge has not committed error in
acquitting the accused for the offences for which they were charged.
CRIMINAL
APPEAL NO.475/05 WITH CRIMINAL APPEAL NO. 2016/05 SESSIONS CASE
NO.225/04)
It
appears that thereafter, as the complaint was filed by Mohammed
Hanif Abdul Sheikh to the Human Rights Commission and the State
Government had directed for further investigation of certain cases,
in the present above referred complaint also, there was further
investigation and the supplementary charge-sheet for the offences
under sections 302, 395, 396, 307, 436, 435, 427, 120B, 295 of the
IPC read with section 135 of the Bombay Police Act was filed on
24.06.2004 before the learned Judicial Magistrate, Santrampur,
against Rameshbhai Ratnabhai Bamania (appellant of Criminal Appeal
No.475/05) and Manglabhai Nathabhai Damod (appellant of Criminal
Appeal No.2016/05). The same was subsequently registered as
Sessions Case No.225/04.
The
prosecution in order to prove the guilt of the accused, examined 22
witnesses and produced 13 documentary evidences, the details whereof
are available in the judgement of the learned Sessions Judge at para
5. The learned Sessions Judge, thereafter recorded the statement of
the accused under section 313 of the CRPC wherein they denied the
material against them and stated that a false case is filed against
them. Thereafter, the learned Sessions Judge heard the matter and
found that the accused are not guilty for the offences under
sections 395, 396, 307, 417, 235, 120B of IPC read with section 135
of the Cr.P.C., but the accused are guilty for offences under
section 304 Part II, 435 and 436 of the IPC. The learned Sessions
Judge thereafter, also heard the matter on the aspects of sentence
and ultimately, imposed sentence as referred to hereinabove. Under
these circumstances, the present appeal by both the accused
separately before this Court.
The
evidence of Doctor Rameschandra Harjivan Shrimali as well as
Dr.Jayant Nagardas Solanki for the injury sustained by the deceased
and the victim has remained consistent as were in the earlier
Sessions Case Nos.123/02 and 393/02. On the aspects of the proof of
the incident of the injury caused, it appears to us that there is no
material difference in the evidence of both the witnesses as was
there in the earlier sessions cases. Having found about the
incidence, the prosecution has been able to prove the case that the
mob had caused injury to the deceased and the other witnesses
including the complainant, on the aspects of involvement of the
accused of the present case, who shall be referred to as A1 and A2,
the scrutiny would be required, to be made further.
As
per the case evidence of the complainant, Mohammed Hanif Abdulrahim
Sheikh, P.W.3, Exh.24, he has stated in the complaint that there
were 8 persons out of which Manglabhai Kohyabhai of Sadavda who used
to come to sell vegetable to Divda colony was there. As per the
said witness, at about 11.45, the said Manglabhai Kohyabhai had came
and called him outside the house, but when he denied, he threw the
iron rod on the gate of the bunglow and made an attempt to give
assault and the showcase inside the bunglow was broken. He then
stated that this Manglabhai had set on fire log of wood which was
lying nearby the house and then he climbed up in the verandah and
set fire in the veranda. He also stated that 8 persons had
surrounded by giving blows and Ramesh Ratna gave a blow to his son
Maqbool on the head and on the back side with the pipe. He has
deposed that his son Maqsood was pulled out of fencing and when
they went inside the house, his son Maqsood was already set to fire.
He also stated that the police came at about 2.05 O Clock and
told that now the time is over and the persons of the mob with sword
and pipe and Kerba had already gone away. He also identified the
accused who were present in the Court and also identified pipe which
was discovered as mudammal. In the cross examination, the said
witness when was confronted with the earlier deposition before the
Court, he said that because of fear, he had given earlier deposition
in earlier cases and he also stated that in the application made to
Human Rights Commission, such details were not mentioned. He
admitted that in the earlier cases, in the open court, his
deposition was recorded on oath. He voluntarily stated that the
same was because of fear. He stated that because of fear, he had
informed to the concerned authority and he also stated that he is
ready to produce the papers and after seeing those papers, he can
say that on which date, such representation was made. He admitted
that he had the knowledge that the accused of the earlier cases were
acquitted. He admitted the contents of the complaint and he stated
that in the complaint he had given name of Ramesh Ratna and Mangal
Natha. Both were identified by him before the police when
Identification Parade was held by the police. He confirmed that in
Sessions Case No.393/02, his deposition was recorded before the
Court and upon this admission, the earlier deposition recorded in
Sessions Case No.393/02 of the very witness was accepted in the
evidence by giving Exh.27 in the present Sessions case. However, he
stated that he had identified the accused, but because of fear, he
did not state in the deposition the name of the accused. He also
confirmed that in earlier Sessions Case No.123/02, which was against
Narendra @ Gatubha, his deposition was recorded. He confirmed that
he had signed the police statement and in the police statement in
which his signatures were there are correct and others are not
correct. He denied that in the earlier deposition, he had not
identified anyone and that is why today he is saying that because of
fear, he had given such deposition. He denied that before the
police, he had not stated that Manglabhai Kohyabhai of Sadavda
had set fire or Rameshbhai Ratnabhai had given blow of iron
pipe over the head and the backside of his son Maqsood and he had
fallen down .
The
pertinent aspect is that in the complaint, the content of which is
admitted by him, he has stated that he had identified Tikubapu of
Kadana, Pradipbapu ST driver, brother of Pradipbapu who is running
jeep and one vegetable merchant of Math village to whom he can
identify and Saniyo Driver of Saliya Muvadi and other Bapus of
Pangalla of Divda village. There is no specific reference to the
name of any of the accused of the present case. The vegetable
merchant who has been referred, is stated to be of Math and not of
village Sadavda.
The
prosecution had also examined Jubedabibi Mohammedali Sheikh, P.W.4,
Exh.30. In the examination in chief, she has stated that one
vegetable merchant had called her husband to come out and she had
stated that Rameshbhai Vagadia had given blows on the head and
backside of her son. Rameshbhai Vagadia is identified by her in the
Court and she also identified the pipe, mudammal article No.1. In
the cross examination, she confirmed that in the earlier cases, two
times, her deposition was recorded and she confirmed that she had
stated the correct facts therein. She stated that she has no
dispute for the accused who have been acquitted in the earlier cases
wherein her deposition was recorded. She admitted that in the
police statement, she had stated that the vegetable merchant had
started abusing and had set fire by breaking open, had indulged into
the activity of destruction and had set fire. She also admitted that
in the police statement, she did not mention that Ramesh Vagadia had
given blow upon her son on the backside and on the head.
The
pertinent aspect is that this witness has not disowned or
contradicted the factum of her deposition made before the Court and
the contents of those depositions and she has admitted the contents
of her police statement.
Salmabibi
Maqbool Mohammed Hanif Sheikh, P.W.5, Exh.33 is the next witness
examined by the prosecution. She in her examination in chief had
stated that the vegetable merchant whose name is Manglabhai and who
is present in the Court was abusing from outside and was calling her
father-in-law. She stated that the accused Manglabhai had inflicted
iron pipe and she pulled away the same. She has not stated the name
of the person who had given blow on the head of the brother of her
husband-deceased nor the name of the person who set on fire the
deceased. In the cross examination of the said witness, she stated
that in the earlier deposition that was made before the Court, she
had made false statement and she knows that if false statement is
made, the same is an offence. She stated that she had not filed any
complaint before any one if any threat was given or the monetary
inducement was given for making false statement earlier. She
admitted that whatever was left out in the earlier deposition of
earlier cases, was stated by her father-in-law in the application
made to Human Rights Commission. She had stated that she does not
know anybody by name.
The
pertinent aspect is that in the application made to the Human Rights
Commission, the name is mentioned of vegetable merchant Manglabhai
Vagadia of Sadavda village for his presence in the mob and for
abusing and the name of Rameshbhai Ratnabhai and other accused is
not mentioned. She has admitted the earlier deposition stating that
it was false, without there being any other explanation of fear etc.
The
other witnesses Illiyas Haji Kayyum, p.w.6, Exh.47, who is witness
for inquest panchnama has turned out to be hostile. The witness
Vinhubhai Shankarbhai, P.W.7, Exh.49 in the arrest panchnama of
Rameshbhai Ratnabhai and recovery of pipe has turned to be hostile.
Hifzur
Rehman Usmangani, P.W.8, Exh. 51, who is panch witness for
identification of Manglabhai, has supported the case of prosecution
for preparation of the panchnama. It may be recorded that the
identification of the said accused by the complainant before police
is when he was in police custody.
Dalpatsinh
Hamirsinh Rathod, p.w.10, Exh.55, has confirmed that initially, he
had arrested Narendrasingh and charge-sheet was filed and complaint
on the spot was registered against Tikubapu, Pradipbapu ST driver,
brother of Pradipbapu who is running jeep one vegetable merchant of
Math village whose name is not known and Saniyo driver and he also
confirmed that he had not arrested the present accused earlier.
Kalubhai
Punjabhai Damor, who is panch witness, P.W.12, Exh.63, Masiullah
Mohammedrafiq Patel, P.W.13, Exh.64, who is panch witness for
identification of accused No.2 in the police custody, have turned
hostile. Attaullahkhan Mohammedkhan Pathan, P.W.14, Exh.66, who is
also panch witness and Jafar Mohammed Sindhi, another panch witness,
P.W.15, Exh.67, Motibhai Bhurabhai Machi, P.W.16, Exh.69, have
turned to be hostile.
The
aforesaid are the major pieces of evidence which are required to be
considered. The judicial scrutiny is required to be made to the
judgement of the learned Sessions Judge in light of the aforesaid
evidence read with the relevant provisions of the law. If the
judgement of the learned Sessions Judge which is impugned in the
present appeal is considered, the reasons are stated to be from para
9 onwards. However, upto para 30, there is narration of the
statement made by the respective witnesses who are examined by the
prosecution. Paras 31 and 32 are the statements made on behalf of
the prosecution as well as by the defence. The consideration of the
matter by the learned Sessions Judge and rather for examination of
the contention begins from para 33 of the judgement. When the
learned Sessions Judge considered the matter in the earlier sessions
cases, he found that the earlier decision would not be applicable
since he also exercises the same power. On the aspect of
appreciation of evidence, when the matter is considered by him, he
finds that the medical evidence is supported by the evidence of the
witnesses. However, an erroneous finding is that no question is put
to the witness Mohammed Hanif, P.W.3, Exh.24 for the involvement of
the accused. At that stage, the learned Sessions Judge has lost
sight of considering the matter for contradiction in the deposition
of the said witness in earlier sessions case Nos. 225/04 and 393/02.
While
appreciating the evidence of Zubedabibi Mohammed Hanif, Salmabibi,
subsequently, the learned Sessions Judge has considered the defence
that in the earlier deposition, the accused therein were acquitted.
While considering the defence of the accused, based on the
deposition in the earlier case, the learned Sessions Judge has
absolutely lost sight of the important aspect of the evidentiary
value and material contradiction, if any, in both the depositions as
to whether any sufficient explanation is coming on record of the
witness and even if the explanation is there on record, whether such
explanation if decided on the reasonable prudence, should be
accepted or not. The aspects of contradiction in the deposition
made before the Court of the respective witnesses, more
particularly, on the aspects that they could not identify any
person, would frustrate the evidentiary value of the deposition made
before this Court in the present before the Sessions Case or not and
if yes, to what extent and if not for what reason are not at all
considered by the learned Sessions Judge. Instead of considering
the said aspect, the learned Sessions Judge has stated that the
evidentiary value of the deposition of the earlier case cannot be
decided in the present case and the deposition recorded in the
present case is only required to be considered. It is true that the
deposition or the evidence led in the present case was required to
be taken into consideration, but in the present case itself, the
witnesses have confirmed the deposition and to some extent,
explanation is also given by witnesses. Not only that, but the
deposition so recorded in the earlier sessions Case Nos. 393/02 of
the concerned witnesses were produced and exhibited. One of the
witnesses Salmabibi, P.W.5, has stated to the extent that in the
earlier deposition, she had made false statement before the Court.
Further knowing well that making a false statement is an offence.
The witness Zubedabibi, P.W.4, Exh.30, confirmed that her deposition
was recorded earlier in the Court and she had stated that her
deposition was recorded earlier in the Court and she had stated true
facts. She also confirmed for not giving names in the statement
recorded before the police. The complainant Mohmmed Hanif, p.w.3,
Ex.24 has also confirmed the said deposition by admitting the same,
but the explanation given is of fear at the relevant point of time.
He admits the complaint given by her to the police. If the contents
of the said complaint are considered as it is, the name of any of
the accused, if not stated in the complaint and denied in the
deposition also was required to be considered. Further, whether the
explanation of fear that the earlier deposition was recorded could
be believed or not was also an aspect to be considered by the
learned Sessions judge. It appears that the learned Sessions Judge
has totally lost sight of consideration of the contradiction and the
evidentiary value to be given thereafter, in the present case.
At
this stage, we may refer to the provisions of section 145 of the
Evidence Act, which reads as under:
145.
Cross-examination as to previous statements in writing –
A witness may be cross-examined as to previous statements made by
him in writing or reduced into writing and relevant to matter in
question, without such writing being shown to him, or being
proved; but if it is intended to contradict him by the writing, his
attention must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of contradicting
him.
The
learned counsel appearing for the appellant contended that the
requirement of section 145 of the Evidence Act was satisfied to
contradict the witness by the respective witness by their deposition
made in the earlier sessions cases, more particularly on the aspect
that the concerned witness had stated before the Court that they
could not identify anybody who were in the mob. Whereas, it was
submitted that the question put to the witnesses in the
cross-examination and the admission of giving deposition and also
admission of making statement before the Court in earlier cases and
production of the deposition made by the concerned witnesses in the
earlier sessions cases for the same complaint and having exhibited
in the evidence by the Sessions Court, can be said as substantial
compliance to the provisions of section 145 of the Evidence Act. It
was submitted that if the contradiction is found to be proved, the
evidentiary value of the deposition of the so called eyewitness
could be said as having lost and the substratum of the case of the
prosecution would also be lost and the accused would be entitled to
the benefit thereof.
The
learned counsel for the appellant-accused relied upon the decision
of the Apex Court in the case of Bhagwan Singh v. State of Punjab
reported at AIR 1952 SC 214, more particularly the observations made
at para 26, that there cannot be a hard and fast rule and what is
required is as to whether the witness was treated fairly and was
afforded a reasonable opportunity of explaining the contradiction
after his attention was drawn or not. The learned counsel submitted
that in the said case, the Apex Court found that the matter would be
one of the substance and not of mere form. In his submission, in
the present case, the compliance was already made of section 145 of
the Act. He also relied upon the another decision of the Apex Court
in the case of Gopal v. Subhash reported at AIR 2004 SC page 4900
and more particularly, the observations made at paras 18 and 19 and
contended that even if there is omission in the statement made
before the police, it may result into material contradiction and the
accused would be entitled to the benefit since the provisions of
section 145 of the Evidence Act in substance was already complied
with.
Whereas
the learned APP contended that there is no compliance to the
provisions of section 145 of the Evidence Act by the accused,
therefore, the evidentiary value of the deposition recorded would
not at all be lost of the respective eyewitnesses. He relied upon
the decision of the decision of this Court in the case of Ambalal
Nathalal Vs. State of Gujarat reported in 2004(3)GLH 691 and more
particularly the observations made at paras 18 and 19 of the said
decision. He submitted that each and every statement of the witness
is required to be put to him and the witness is required to be given
opportunity to give the explanation, then only it can be said that
the contradiction is proved in accordance with section 145 of the
Evidence Act. He submitted that mere asking the question generally
of the deposition and the statement made therein by production of
the said deposition would not result into compliance of provisions
of section 145 of the Evidence Act. He also submitted that the
deposition of even hostile witness as per the decision of the Apex
Court in the case of Koli Lakhmanbhai Chandabhai Vs. State of
Gujarat reported at 2000(2)GLH 567, also cannot be washed away and
the said deposition to the extent if supports the case of the
prosecution is required to be considered. He therefore submitted
that if there is non-compliance to the provisions of section 145 of
the Evidence Act, the benefit would not be available to the accused.
Had
it been a case where the learned Sessions Judge has considered the
aspects as to whether the provisions of section 145 of the Evidence
Act has been complied with or not and had it been a case where after
consideration of the provisions of section 145 of the Evidence Act,
the learned Sessions Judge had appreciated and considered the
evidentiary value of the deposition of the witnesses and more
particularly, the deposition of the eyewitnesses, it might stand on
different consideration and in the present appeal, the scope would
have been as to whether such could be said to be reasonable or not?
In the impugned judgement, whether there is a compliance to the
provisions of section 145 of the Evidence Act for bringing
contradiction and if yes, to what extent and the effect upon the
case of the prosecution of such contradiction or omission, if any,
as the case may be was a must. It is only thereafter, the matter
could have been further examined by the learned Sessions Judge for
tracing the guilt by involvement of the accused in the incident.
On
the aspect of identification of the accused, it appears that there
is not proper discussion by the learned Sessions Jude as was
required in the present case. It is not considered by the learned
Sessions Judge that there are peculiar circumstances inasmuch as in
the complaint, the names of the present accused were not given.
Further, after the complaint, in the earlier two sessions cases, the
very witnesses after stating the names of certain persons in the
complaint, had deposed before the Court that they could not identify
any one in the mob. Thereafter, in further investigation which has
led to the present sessions case, after arrest, when the accused
were in custody, were identified by the complainant. It is not
considered by the learned Sessions Judge that if the accused were
known to the complainant, their name could have been stated in the
very complaint and if not known and identity was not clear, holding
of the identification parade was required to be held or not. It
also appears that as per the observations made by the learned
Sessions Judge, the police machinery had a soft peddling approach in
the matter of investigation, then also, nothing prevented the
learned Sessions Judge to examine the aspects of proving the
identity of the accused by the prosecution or in any case, the
effect of not holding of the identification parade and the
identification made before the police in custody in the present
case. It appears to us that the aforesaid two aspects were also
vitally important, which may have bearing to the record of the guilt
of the accused or otherwise.
Apart
from the above referred aspects, it further appears that after
consideration of the evidence of the witnesses by the learned
Sessions Judge at paras 38, 39 and 40, he finds that there is no
certain and concrete evidence coming on record that the present
accused had pulled on Maqsood outside the home and had sprinkled the
kerosene and had set on fire and the blow of pipe was given. The
learned Sessions Judge has further found that though there is no
direct evidence, but the circumstantial evidence leads to the guilt
of the accused. It is also not considered by the learned Sessions
Judge that the prosecution case is of direct evidence of eye
witnesses and not of the circumstantial evidence. The learned
Sessions Judge has recorded the finding that the accused was present
at the time of the incident, but when Maqsod was pulled away and set
on fire, their presence was not there, but the involvement of the
accused is found from their presence. The learned Sessions Judge
further found that from the circumstantial evidence, it does not
transpire that the present accused had assaulted the complainant and
the witness, but in the whole episode, the presence of the accused
is seen and it is certainly proved that they have set on fire the
house of the complainant and the witnesses. The learned Sessions
Judge has observed that the conduct of the accused leads to the
guilt by circumstantial evidence of homicidal death of the deceased
Maqsood. At the end of para 40 of the judgement, the learned
Sessions Judge has found that the excitement of the accused may not
be the same as with the other accused and there is no direct
evidence available for causing death of deceased Maqsood against the
accused, but their presence and the involvement for setting the fire
to the house of the complainant and the witnesses can be termed as
not the murder, but a culpable homicide.
It
appears to us that the aforesaid finding of the learned Sessions
Judge is by various self-contradiction in itself. There is no clear
finding after considering the evidence of the witnesses including
father considering the contradiction, if any, as to whether the
accused in the present case are involved or not. In our considered
view, it was required for the learned Sessions to appreciate and
consider the evidence in depth and the finding was required to be
recorded thereafter accordingly. We find that the learned Sessions
Judge has also not taken into consideration as to whether the
ingredients for the offences for which the accused concerned were
charged have been satisfied in the present case and if yes, to what
extent. The guilt recorded by the learned Sessions Judge of the
accused for the offence under sections 304 Part-2, 435, 436 of the
IPC can be said as without at all proper application of mind and
without proper consideration of the material and evidence available
on record, more particularly, after considering the evidentiary
value of the testimony of the eyewitnesses.
At
this juncture, it would be worthwhile to refer to the decision of
the Apex Court in the case of Zahira Hibibullah H. Sheik Vs. State
of Gujarat reported at 2004(4) SCC 158 on the aspect of approach of
the Court and more particularly in communal riot cases. At para 35,
it was observed inter alia thus, relevant of which is as under:
If
a criminal Court is to be an effective instrument in dispensing
justice, the Presiding Judge must cease to be a spectator and a mere
recording machine by becoming a participant in the trial evincing
intelligence, active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find out the truth,
and administer justice with fairness and impartiality both to the
parties and to the community it serves. Courts administering criminal
justice cannot turn a blind eye to vexatious or oppressive conduct
that has occurred in relation to proceedings, even if a fair trial is
still possible, except at the risk of undermining the fair name and
standing of the judges as impartial and independent adjudicators.
At
para 38, it was observed thus:
A
criminal trial is a judicial examination of the issues in the case
and its purpose is to arrive at a judgment on an issue as a fact or
relevant facts which may lead to the discovery of the fact issue and
obtain proof of such facts at which the prosecution and the accused
have arrived by their pleadings; the controlling question
being the guilt or innocence of the accused. Since the object is to
mete out justice and to convict the guilty and protect the innocent,
the trial should be a search for the truth and not a bout over
technicalities, and must be conducted under such rules as will
protect the innocent, and punish the guilty. The proof of charge
which has to be beyond reasonable doubt must depend upon judicial
evaluation of the totality of the evidence, oral and circumstantial
and not by an isolated scrutiny.
At
para 40, it was observed thus-
The
fair trial for a criminal offence consists not only in technical
observance of the frame and forms of law, but also in recognition and
just application of its principles in substance, to find out the
truth and prevent miscarriage of justice.
At
para 44, it was observed on the aspect of interpretation of section
165 of the Evidence Act read with section 311 of the Cr.P.C. that –
Object
of the Section is to enable the Court to arrive at the truth
irrespective of the fact that the prosecution or the defence has
failed to produce some evidence which is necessary for a just and
proper disposal of the case. The power is exercised and the evidence
is examined neither to help the prosecution nor the defence, if the
Court feels that there is necessity to act in terms of Section 311
but only to subserve the cause of justice and public interest. It is
done with an object of getting the evidence in aid of a just decision
and to uphold the truth.
At
para 56, it was observed thus:
56.
As pithily stated in Jennison v. Backer (1972 (1) All E.R. 1006),
“The law should not be seen to sit limply, while those who defy
it go free and, those who seek its protection lose hope”. Courts
have to ensure that accused persons are punished and that the might
or authority of the State are not used to shield themselves or their
men. It should be ensured that they do not wield such powers which
under the Constitution has to be held only in trust for the public
and society at large. If deficiency in investigation or prosecution
is visible or can be perceived by lifting the veil trying to hide the
realities or covering the obvious deficiencies, Courts have to deal
with the same with an iron hand appropriately within the framework of
law. It is as much the duty of the prosecutor as of the Court to
ensure that full and material facts are brought on record so that
there might not be miscarriage of justice. (See Shakila Abdul Gafar
Khan (Smt.) v. Vasant Raghunath Dhoble and Anr.)
On
the aspect of contradiction of the evidence, it was inter alia
observed by the Apex Court at para 59, relevant of which reads as
under:
It
is only after admission, the Court should consider in each case
whether on account of earlier contradiction before Court and the
testimony allowed to be given as additional evidence, which of them
or any one part or parts of the depositions are creditworthy and
acceptable, after a comparative analysis and consideration of the
probabilities and probative value of the materials for adjudging the
truth. To reject it merely because of contradiction and that too in a
sensitised case like the one before Court with a horror and terror
oriented history of its own would amount to conspicuous omission and
deliberate dereliction of discharging functions judiciously and with
a justice-orientated mission. In a given case when the Court is
satisfied that for reasons on record the witness had not stated
truthfully before the trial Court and was willing to speak the truth
before it, the power under Section 391 of the Code is to be
exercised. It is to be noted at this stage that it is not the
prosecution which alone can file an application under Section 391 of
the Code. It can also be done, in an appropriate case by the accused
to prove his innocence. Therefore, any approach without pragmatic
consideration defeats the very purpose for which Section 391 of the
Code has been enacted.
If
the judgement of the learned Sessions Judge is examined in light of
the aforesaid observations of the Apex Court, it appears to us that
there is no proper examination of the issues which arise for
consideration by the learned Sessions Judge and there is clear
non-application of mind and also omission to consider certain
aspects which go to the root of the prosecution case and also
certain aspects which may have direct bearing to the case of the
prosecution if the guilt of the accused is to be traced for
involvement in the offence for which the accused were charged.
In
the decision of the Apex Court in the case of Popular Muthiah Vs.
State reported at 2006(7) SCC, 296, on the aspects of scope of power
of this Court under section 386 read with section 482 of the
Cr.P.C., it was observed by the Apex Court at paras 27, 29 and 30 as
under:
27…..While
exercising its appellate power, the jurisdiction of the High Court
although is limited but, in our opinion, there exists a distinction
but a significant one being that the High Court can exercise its
revisional jurisdiction and/ or inherent jurisdiction not only when
an application therefor is filed but also suo motu. It is not in
dispute that suo motu power can be exercised by the High Court while
exercising its revisional jurisdiction. There may not, therefore, be
an embargo for the High Court to exercise its extraordinary inherent
jurisdiction while exercising other jurisdictions in the matter.
Keeping in view the intention of the Parliament, while making the new
law the emphasis of the Parliament being ‘a case before the court’ in
contradistinction from ‘a person who is arrayed as an accused before
it’ when the High Court is seized with the entire case although
would exercise a limited jurisdiction in terms of Section 386 of the
Code of Criminal Procedure, the same, in our considered view, cannot
be held to limit its other powers and in particular that of Section
482 of the Code of Criminal Procedure in relation to the matter which
is not before it.
29. The
High Court while, thus, exercising its revisional or appellate power,
may exercise its inherent powers. Inherent power of the High
Court can be exercised, it is trite, both in relation to substantive
as also procedural matters.
30.In
respect of the incidental or supplemental power, evidently, the High
Court can exercise its inherent jurisdiction irrespective of the
nature of the proceedings. It is not trammeled by procedural
restrictions in that
power
can be exercised suo motu in the interest of justice. If such a
power is not conceded, it may even lead to injustice to an accused.
Such
a power can be exercised concurrently with the appellate or
revisional jurisdiction and no formal application is required to be
filed therefor.
It
is, however, beyond any doubt that the power under Section 482 of
the Code of Criminal Procedure is not unlimited. It can inter alia
be exercised where the Code is silent where the power of the court
is not treated as exhaustive, or there is a specific provision in
the Code; or the statute does not fall within the purview of the
Code because it involves application of a special law. It
acts ex debito justitiae. It can, thus, do real and substantial
justice for which alone it exists. (Emphasis
supplied)
In
the said decision, at para 56, it was observed thus-
56. So
far as inherent power of the High Court is concerned, indisputably
the same is required to be exercised sparingly. The High Court may
or may not in a given situation, particularly having regard to lapse
of time, exercise its discretionary jurisdiction. For the
said purpose, it was not only required to apply its mind to the
materials on records but was also required to consider as to whether
any purpose would be served thereby. (Emphasis
supplied)
The
pertinent aspect is that in the very decision, at para 24, it was
observed by the Apex Court, the relevant of which reads as under:
The
High Court apart from exercising its revisional or inherent power
indisputably may also exercise its supervisory jurisdiction in terms
of Article 227 of the Constitution of India and in some matters
in terms of Section 483 thereof. The High Court, therefore, has a
prominent place in the Code of Criminal Procedure vis-`-vis the court
of Sessions which is also possessed of a revisional power.
(Emphasis
supplied)
It
is in this light of the aforesaid fact situation of the present
case, we have to exercise the power by taking recourse to the
appellate power read with the inherent power of this Court under the
Code of Criminal Procedure read with the power under Article 227 of
the Constitution. We are conscious of the fact that the present is
a case of communal riot. That being the situation, we are also
conscious of the fact that after the direction issued by the Apex
Court, certain sessions cases which had either resulted into
acquittal or which were pending have been further reinvestigated and
the supplementary charge-sheet have also been filed. In all such
cases, there may be the question of considering the evidentiary
value of the deposition given by the witnesses before the Court in
contradiction to the deposition given in the earlier cases if any.
In all such cases, the question may arise to be considered for
compliance to the provisions of section 145 of the Evidence Act or
not and thereafter, to consider the evidentiary value of the
witnesses. Had it been a case where the learned Sessions Judge in
the present case having fully applied his mind, considered the
aspects and we were to exercise the appellate power, it might have
stood on the different consideration. Further, had it been a case
where the case rested only on the application of section 145 of the
Evidence Act, and the consideration of the evidentiary value of the
witnesses, the matter could have been further considered by this
Court. However, it appears that even if the evidence is considered
as it is, the findings of the learned Sessions Judge on the aspects
of involvement of the accused are self-contradictory in itself as
observed and discussed hereinabove. Therefore, we find that it
would be in the interest of justice to remand the matter to the
learned Sessions Judge for reconsideration of the evidence and to
decide the case in light of the observations made by this Court
hereinabove in the present judgement and after hearing both the
sides and to pass a fresh order. If we consider the aspects of
casual approach of the learned Sessions Judge to the contradiction
in the evidence of the witnesses, which is not at all being
considered by the learned Sessions Judge, it may result into casing
injustice to the prosecution as well as to the accused. In the same
manner, if we set aside the judgement of the learned Sessions Judge
on the ground of no clear finding in the involvement of the accused
for the offence for which he has been found guilty, the accused may
be entitled to the benefit of technicalities and not of substance
which may also cause great injustice to the victim or the
prosecution case. Further, if such a casual approach is permitted
on the part of the Sessions cases and more particularly communal
riots cases, such may have wider repercussions in the society in
general and all the communities in particular. Hence, we find that
in order to do complete justice to prosecution as well as to the
defence and thereby to the victim as well as to the accused, the
inherent power of this Court under Section 482 of the Cr.P.C. is
required to be exercised. Not only that but with a view to set
right the judicial process at the level of the Sessions Court for
consideration of cases, power of this Court under Article 227 of the
Constitution deserves to be exercised by remanding the matter to the
Sessions Court for reconsideration of the case in accordance with
law.
Under
these circumstances, we find that it would be just and proper to
direct the learned Sessions Judge to reconsider the matter afresh in
light of the evidence on record keeping in view the observations
made hereinabove and to pass afresh order. It may be that the
learned Sessions Judge who decided the matter may not be in the same
Court, but it will be for the Principal Sessions Judge, to consider
the matter and to pass the order by himself or by any Additional
Sessions Judge of the district, who can exercise jurisdiction.
We
find that if the judgement and order of the learned Sessions Judge
is set aside, the consequence would arise for restoration of the
trial before the learned Sessions Judge and the conviction made by
the learned Sessions Judge at this stage will be required to be set
aside. It appears that pending the trial, the accused No.2
Manglabhai Nathabhai Dhamot was in jail and he was not released on
bail, whereas accused No.1 Rameshbhai Ratnabhai Bamaniya was on bail
and even after conviction, pending the appeal, he was released on
regular bail by suspension of the sentence. Hence, we find that the
same situation may continue for some time, until the learned
Sessions Judge decides the matter afresh in light of the
observations made hereinabove and the directions as may be given
hereinafter.
Further,
consideration of both the aforesaid judgement and the order of the
learned Sessions Judge in Sessions Case No.123/02 (Criminal Appeal
No.46/04) and in Sessions Case No.393/02 (Criminal Appeal
No.2051/04) in light of the aforesaid observations and discussions
shows that the evidence led by the prosecution case through the
deposition of the witnesses of the respective cases do not lead to
the guilt of the concerned accused in the concerned case since any
of the eye witnesses have not supported the case of the prosecution
nor have identified the concerned accused. Further, even if the
evidence of Sessions Case No.225/04 of the very witnesses is
considered, none has supported the case of the prosecution against
the accused of Sessions Case No.123/02 and 393/02 nor any of the
witnesses have stated that the accused of earlier Sessions Case
No.123/02 and 393/02 were there but were not stated in the
deposition due to fear or otherwise. Hence, we find that no useful
purpose would be served to remand the cases. Hence, the judgement
and order of the learned Sessions Judges in Sessions Case No.123/02
and 393/02 deserves to be confirmed and the concerned appeals
deserve to be dismissed but with the observation that the same shall
not operate as a bar or any impediment to the Sessions Court in
reconsiderations of Sessions Case No.225/04 as observed earlier.
In
view of the aforesaid observation and discussions, the following
order:
Criminal
Appeal No.46/04 and Criminal Appeal No.2051/04 as well as Criminal
Revision Application No.784/04 are dismissed.
Criminal
Appeal No.475/05 and 2016/05 are allowed to the extent that the
impugned judgement and order of the learned Sessions Judge is set
aside with the direction that the Sessions Case No. 225/04 shall
stand restored to the file of the learned Sessions Judge and
further it is directed that the learned Sessions Judge shall
consider the matter in light of the observations made by us in the
present judgement and pass afresh order after hearing he accused as
well as the prosecution and in accordance with law, as early as
possible, but within a period of three months from the receipt of
the order of this Court.
It
is further directed that until fresh judgement and order is passed,
the position as prevailed pending the trial before the learned
Sessions Judge at the time of hearing of both the accused shall
continue, i.e., accused No.2 would continue to remain in judicial
custody and accused No.1 would continue to remain on bail till
then.
In
view of the aforesaid observations and discussions made
hereinabove, on the aspect of evidence on record of Sessions Case
No.393/02, and the consideration thereof by the learned Sessions
Judge and the appreciation by us in the present judgement, as
observed hereinabove, the revision preferred by the victim against
the common judgement and order of the learned Sessions Judge in
Sessions Case No.393/02 deserves to be dismissed. Hence,
dismissed.
All
the appeals are disposed of accordingly.
(JAYANT
PATEL, J.)
(Z.K.
SAIYED, J.)
*bjoy
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