{"id":119679,"date":"2010-07-21T00:00:00","date_gmt":"2010-07-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-we-on-21-july-2010"},"modified":"2016-07-09T16:50:41","modified_gmt":"2016-07-09T11:20:41","slug":"state-vs-we-on-21-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-we-on-21-july-2010","title":{"rendered":"State vs We on 21 July, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs We on 21 July, 2010<\/div>\n
Author: Jayant Patel,&Nbsp;Honourable Z.K.Saiyed,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/46\/2004\t 47\/ 47\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 46 of 2004\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 2051 of 2004\n \n\nWith\n\n\n \n\nCRIMINAL\nREVISION APPLICATION No. 784 of 2004\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 475 of 2005\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 2016 of 2005\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL  \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?                     \n\t\t\tYes to all Sessions Courts     \n\t\t\t\n\t\t\t \n\n                       of\n\t\t\tthe State \n\t\t\t\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nSTATE\nOF GUJARAT - Appellant(s)\n \n\nVersus\n \n\nNARENDRA\n@ GATU BAPUR PARVATSINH PUWAR - Opponent(s)\n \n\n=========================================================\n \nAppearance : \nMR\nLB DABHI, APP for\nAppellant(s) : 1, \nMR JM BUDDHBHATTI for Opponent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 21\/07\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE JAYANT PATEL)<\/p>\n
As
\n\tin all the matters, the facts are interlinked, they are being
\n\tconsidered by this common judgement.\n<\/p>\n
We
\n\thave considered the record and proceedings of the trial court.  We
\n\thave heard the learned APP for the State and we have heard the
\n\tlearned counsel appearing for the respondents-accused.\n<\/p>\n
Criminal
\n\tAppeal No.46\/04 is preferred by the State against the judgement and
\n\torder passed by the learned Sessions Judge dated 16.09.2002 in
\n\tSessions Case No.123\/02, whereby accused Narendrasinh @ Gatu Bapu
\n\tParvatsinh Puvar has been acquitted for the offences under sections
\n\t143, 148, 302 read with section 149 of IPC, under section 323 read
\n\twith section 149 and under section 436 read with section 149 of IPC.\n<\/p>\n
Criminal
\n\tAppeal No.2051\/04 is preferred by the State against the judgement
\n\tand order dated 31.03.2004 passed by the learned Sessions Judge in
\n\tSessions Case No.393\/02, whereby four accused, viz., Krushnapalsinh
\n\tKishorsinh Puvar, Pradip Somsinh Chauhan, Chattrapalsinh Somsinh
\n\tChauhan and Shanabhai Motibhai Khant (hereinafter shall be referred
\n\tas A1 to A4 of Sessions Case No. 393\/02 respectively) have been
\n\tacquitted for the offence under sections 302, 395, 396, 307, 436,
\n\t435, 120B, 295 of IPC read with section 135 of the Bombay Police
\n\tAct.\n<\/p>\n
Criminal
\n\tRevision Application No.784\/04 is preferred by the original
\n\tcomplainant\/informant for quashing and setting aside the judgement
\n\tand order dated 31.03.2004 passed by the Sessions Judge in Sessions
\n\tCase No.393\/02 which is also subject matter of the appeal being
\n\tCriminal Appeal No.2051\/04.\n<\/p>\n
Criminal
\n\tAppeal No.475\/05 as well as Criminal Appeal No.2016\/05 arise against
\n\tJudgement and Order passed by the learned Sessions Judge in Sessions
\n\tCase No.225\/04 dated 24.02.2005, whereby the appellant of Criminal
\n\tAppeal No.475\/05 as well as the appellant of Criminal Appeal
\n\tNo.2016\/05 have been convicted for the offence under sections 304
\n\tPart II, 436, 435 of IPC and the sentence has been imposed upon both
\n\tthe accused for 10 years imprisonment with the fine of Rs.250\/- and
\n\tfurther imprisonment of 15 days in lieu of the fine.\n<\/p>\n
 COMMON
\n\tCOMPLAINT<\/p>\n
As
\n\tper the prosecution case, on 01.03.2002, the complainant Mohammad
\n\tHanif Abdulrahim Sheikh lodged the complaint with PSI, Kadana Divda
\n\tCamp of Santram Police Station stating that on 01.03.2002, when the
\n\tcomplainant and his wife Zubedabibi Mohammedali Sheikh, his son
\n\tMaqsood, Maqbool and Mustaq, Salma, wife of Maqbool, and her two
\n\tyoung children Faizan and Naziyabanu were at their residence at
\n\tabout 12.45, there was shouting from all the four corners and mob
\n\tsurrounded and started stone throwing.  Therefore, they had closed
\n\tall the doors and were inside the house.  At that time, a crowd of
\n\tabout 100 to 150 persons broke open the door and they had the weapon
\n\tof sword (Dharia) and pipes and they came prepared with the fire
\n\trags.  In the stone throwing, he had sustained minor injury and his
\n\tson Maqbool was beaten with the iron pipes and he sustained
\n\tinjuries. When Maqbool carried Mustaq outside since he was
\n\thandicapped, he was beaten with sticks and the wife of Maqbool also
\n\tsustained injuries on the head because of stone throwing and
\n\tNaziabanu sustained minor injuries in the stone throwing.  At that
\n\ttime, when Maqsood requested with folded hands, the crowd poured
\n\tkerosene over him and a blow of stick was given over his head and as
\n\ta result thereof, he became unconscious and thereafter, the fire was
\n\tset and he expired.  The house was also set on fire.  It was stated
\n\tby him that in the said incident, he had seen Tikubapu, Pradipbapu
\n\tST driver, brother of Pradipbapu who is running jeep and one Makno,
\n\tvegetable merchant whose name is not known to him, but he can
\n\tpersonally identify and Saniyo driver who was also identified and
\n\tother bapus of Pan Galla of Divda village were identified by him.
\n\tThe complaint was registered vide C.R. No.34\/02 of Santrampur Police
\n\tStation.\n<\/p>\n
The
\n\tpolice had investigated and the charge-sheet was filed against
\n\tNarendrasinh @ Gatu Bapu Parvatsinh Puvar, which was registered as
\n\tSessions Case No.123\/02 and thereafter, supplementary charge-sheet
\n\twas filed against four persons viz., Krushnapalsinh  Kishorsinh
\n\tPuvar, Pradip Somsinh Chauhan, Chattrapalsinh Somsinh Chauhan and
\n\tShanabhai Motibhai Khant, which was subsequently registered as
\n\tSessions Case No.393\/02.\n<\/p>\n
        CRIMINAL
\nAPPEAL NO.46\/04(SESSIONS CASE NO.123\/02)<\/p>\n
In
\n\tSessions Case No.123\/02, the evidence was led by the prosecution and
\n\tthe documentary evidence was produced by the prosecution in order to
\n\tprove the guilt of the accused of the said case. The learned
\n\tSessions Judge thereafter, recorded the statement of the accused
\n\tunder section 313 of the Cr.P.C. wherein the accused admitted the
\n\tevidence taken of the complainant, recorded before him and he denied
\n\tfor leading of any evidence by him and he also denied for
\n\texamination of any defence witness.  The learned Sessions Judge,
\n\tafter hearing the complainant as well as the accused, passed the
\n\tjudgement and order whereby he has acquitted the accused as referred
\n\tto hereinabove and under these circumstances, the appeal being
\n\tCriminal Appeal No.46\/04 before this Court preferred by the State
\n\tagainst the aforesaid acquittal.\n<\/p>\n
The
\n\tevidence led on behalf of the prosecution as found by the learned
\n\tSessions Judge is proved to the extent of causing death of the
\n\tdeceased Maqsood by the mob and as per the inquest panchnama, the
\n\tplace of offence, the evidence of Doctor Jayant Nagardas Solanki,
\n\tP.W.4, Exh.12, the deceased had sustained injuries.  The body was
\n\tburnt upto first and second degree and the cause of death is due to
\n\tthe burn injuries sustained by the deceased.  Therefore, the learned
\n\tSessions Judge has rightly found that there was unlawful assembly
\n\tand the members of the unlawful assembly have caused death of the
\n\tdeceased and have also caused damage to the properties of the
\n\tcomplainant and his family members. However, the learned Sessions
\n\tJudge while examining the aspects as to whether the accused can be
\n\theld responsible for the said offence or not, has found that the
\n\tpresence of the accused was not proved and it is that part of the
\n\tobservations made by the learned Sessions Judge, which is required
\n\tto be examined in the present appeal.\n<\/p>\n
The
\n\tprosecution has examined Mohammed Hanif Abdulrahim Sheikh, P.W.1,
\n\tExh.8 as well as Maqbool Mohammed Hanif Sheikh, P.W.2, Exh.10, who
\n\tare eyewitnesses to the incident.  Both the witnesses have supported
\n\tthe case of the prosecution to the extent of causing death, but
\n\tMohd. Hanif Abdulrahim Sheikh,  father of the deceased in the
\n\texamination-in-chief stated that he is not aware about the name of
\n\tthe person who had called him since he had hided himself inside the
\n\thouse.  He also stated that he did not identify any of the person in
\n\tthe mob.  He also stated that he had not seen the blow given to his
\n\tson with any weapon. He confessed that the police complaint was
\n\tgiven and the names were also given in the complaint, but he states
\n\tthat he was not knowing those persons.  The said witness as was
\n\tfound not supporting the case of the prosecution, the learned
\n\tSpecial PP was permitted to put the question to be asked in the
\n\tcross-examination and he stated that it had neither happened nor in
\n\tthe complaint he had mentioned that  in the incident Tikubapu,
\n\tPradipbapu ST driver, brother of Pradipbapu who is running jeep and
\n\tthe other person who is selling vegetable belonging to Math village
\n\tand other persons whose names are not known to him, but can be
\n\tidentified, were there.  Saniyo driver, resident of Saliya Muvadi
\n\twas also identified.  The other Bapus of Pan Galla of Divda village
\n\twere also identified .  He also stated that he is not knowing
\n\tabout the person who set his shops on fire.  He denied that he was
\n\tgiving deposition to save the accused.\n<\/p>\n
The
\n\tother witness Maqbool Mohammed Hanif Sheikh, P.W.2, Exh.10, brother
\n\tof deceased, in his examination-in-chief stated that he is not aware
\n\tabout the blow given by him since he was not knowing anyone.  He
\n\talso stated that he is not in a position  to identify the person who
\n\tgave the blow and set fire upon his  brother Maqsood and he also
\n\tstated that the person who attacked upon them can be identified but
\n\tthey are not present in the Court.  He denied the police having
\n\trecorded his statement.  As the witness was not supporting the case
\n\tof the prosecution, the learned Special PP was permitted to put the
\n\tquestion which could be asked in the cross-examination.  Thereafter,
\n\the has denied the statement recorded by the police stating that
\n\t Ramesh Vagadia had given a blow to me with the pipe and I had
\n\tfallen down .  He stated that it had neither happened nor his
\n\tstatement was recorded that  my wife had requested with folded
\n\thands and at that time, Saniyo driver of Saliya-Movadi village had
\n\tpoured 5 litres of kerosene carbo over her, therefore her deceased
\n\tbrother Maqsood had asked her to run away and she had come inside
\n\tthe bungalow.   At that time, Pradip and his younger brother whose
\n\tname is not known who are sons of Tikubapu and Somsinhbapu,
\n\tPradipbhai  and his younger brother whose name is not known, Saniyo
\n\tdriver and one vegetable vendor of Math village and Jaideep driver
\n\tof Radhanpur surrounded Maqsood and they pulled him out of the
\n\tbunglow and took him to the road and set on fire and therefore, he
\n\texpired due to burning .  The said witness stated that it had
\n\tneither happened nor his statement was recorded that  again Saniyo
\n\tdriver had came with the sword and he attempted to attack his father
\n\tand blows of sword were given on Suzuki and his father was saved.
\n\tAt that time, Suzuki was set to fire and was burnt.  Thereafter, he
\n\thad started shouting on the road that Sheikh is alive and he must be
\n\tcut .  He denied that he is giving false deposition to save the
\n\taccused.\n<\/p>\n
The
\n\tthird witness examined is Zubedabibi Mohammedali Sheikh, P.W.3,
\n\tExh.11.  The said witness in the cross-examination has stated that
\n\tshe had not seen who were there in the mob. She did not identify
\n\tanybody in the mob and they had hided themselves in the gallery.
\n\tShe stated that she is not knowing about the persons who had given
\n\tblow to their family members.  She also stated that she is not
\n\tknowing the person who had pulled her son and given blow to her son.
\n\t She also stated that she is not knowing as to who had poured
\n\tkerosene on Salma, wife of his son.  She stated that my husband has
\n\tnot given any name of the assailants and she had also not given any
\n\tname orally in the police statement. She also stated that my husband
\n\tor my son or my son’s wife Salma has not identified any person from
\n\tthe mob.\n<\/p>\n
In
\n\tview of the aforesaid testimony of the three witnesses who were
\n\tpresent at the time of the incident,  it can be said that the
\n\tinvolvement of the accused Narendrasinh @ Gatu Bapu Parvatsinh Puvar
\n\tin the incident for which he was charged is not proved.  Hence, as
\n\tsuch, it cannot be said that the learned Sessions Judge has
\n\tcommitted error in acquitting the accused of Sessions Case No.123\/02
\n\tby the impugned Judgement and Order which is subject matter of
\n\tappeal No.46\/04.\n<\/p>\n
 CRIMINAL
\nAPPEAL NO.2051\/04(SESSIONS CASE NO. 393\/02)<\/p>\n
This
\n\tsessions case arose on account of the supplementary charge-sheet
\n\tfiled in connection with the same complaint filed by the
\n\tcomplainant.  The prosecution in order to prove the guilt of the
\n\taccused examined 9 eye witnesses and produced 25 documentary
\n\tevidences.  The details of the same are available in para 3 of the
\n\tjudgement of the learned Sessions Judge.  The learned Sessions Judge
\n\tthereafter had recorded further statement of the accused under
\n\tsection 313 of the Cr.P.C., wherein the accused denied the evidence
\n\tagainst them.  The learned Sessions Judge thereafter, heard the
\n\tprosecution as well as the accused and thereafter, has passed the
\n\tjudgement and order, whereby the accused, as referred to
\n\thereinabove, have been acquitted for the offences charged against
\n\tthem. Under these circumstances, the present appeal being Cr. Appeal
\n\tNo.2051\/04 before this Court.\n<\/p>\n
The
\n\tprosecution has examined Mohammed Hanif Abdulrahim Sheikh, injured
\n\twitness and father of the deceased, P.W.1, Exh.18, Maqbool Mohammed
\n\tSheikh, P.W.2, Exh.20, Zubedabibi Mohammedhanif Sheikh, P.W.3,
\n\tExh.21 and Salmabibi Maqbool Sheikh, P.W.4, Exh.22.  In the
\n\tdeposition of Mohammed Hanif Abdulrahim Sheikh, P.W.1, Exh.18, in
\n\tthe examination-in-chief,  he has narrated the incident of the mob
\n\tof 100-150 persons.  He stated that he had not identified who were
\n\tthe persons in the said mob.  He admitted the complaint, but he has
\n\tfurther stated that the names were given in the complaint since
\n\ttheir names were being shouted and therefore, on that basis, the
\n\tnames were given in the complaint.  In the cross-examination, the
\n\tsaid witness has stated that he had not seen the accused in the mob.
\n\t He stated that since he was so disturbed at the time of the
\n\tincident and the police came and he was asked to give complaint and
\n\ttherefore, the complaint was given.  He also stated that as the
\n\tnames were being shouted by the mob, he had given the name, but he
\n\tdid not personally see any of the accused on that day.  He also
\n\tspecifically stated that he had not seen accused Krushnapalsinh,
\n\tPradipbabu, Chatrapal and Shanabapu beating his family members nor
\n\the had seen the said accused for damaging his shop or setting fire.\n<\/p>\n
In
\n\tthe examination-in-chief of Maqbool Mohd. Sheikh, P.W.2, Exh.20, who
\n\tis injured witness as well as the brother of the deceased, he had
\n\tstated that his brother was assaulted and who has set fire to his
\n\tbrother Maqsood is not personally known to him.  He stated that he
\n\tis not having personal knowledge about the person who poured
\n\tkerosene upon his wife.  He also stated that he is not having any
\n\tpersonal knowledge about the name of the persons who had caused
\n\tinjury with the stone to his father.  He stated that the police had
\n\tmade an inquiry and the statement was recorded.  Thereafter, he was
\n\tdeclared hostile at the request of the learned Special PP and he
\n\tdenied the statement recorded before the police stating that Ramesh
\n\tVagadia had given blow to him on the head.  He also denied the
\n\tcontents of the statement recorded by police about the involvement
\n\tof the accused in the incident.  In the cross-examination, he
\n\treconfirmed that as per the deposition recorded of him in Sessions
\n\tCase No.123\/02, he had stated that he had not seen anybody.  He
\n\tfurther stated that at the time of incident by the mob, what role
\n\tplayed was not seen by him.  He also stated that in the earlier case
\n\talso, he did not identify anybody present in the Court.  He stated
\n\tthat today, when the accused are shown to him, he has stated that he
\n\thad not seen any of the accused present in the mob.\n<\/p>\n
Zubedabibi
\n\tMohammed Hanif Sheikh, P.W.3, Exh.21, mother of the deceased, in the
\n\texamination-in-chief stated that she has not seen who were in the
\n\tmob, since they were inside the house.  She stated that she did not
\n\tsee who had pulled her son out of the house.  She also stated that
\n\tshe had not seen who had poured kerosene upon the wife of the son.
\n\tShe also stated that the accused who are shown to her were not seen
\n\tby her on that day in the mob.  At that stage, she was declared
\n\thostile and in the cross-examination she denied the statement
\n\trecorded by the police and she also denied that with a view to save
\n\tthe accused, she has given false deposition before the Court.  In
\n\tthe cross-examination, the said witness reconfirmed that earlier she
\n\thad come to the Court for giving deposition and at that time also
\n\tshe had stated that she was not knowing anything about the incident
\n\tand she had not given name of any person in the incident.  She
\n\tstated that because the fire was set, she got feared and she ran
\n\taway from the house.  She stated that they had gone behind the house
\n\tof Mohanbhai Sindhi who is staying on the backside of their house.
\n\tShe has stated that the persons who are shown as accused were not
\n\tseen in the mob on the day of the incident.  She also stated that at
\n\tthe time, they had hided themselves behind the house of Sindhi, her
\n\tfamily members, her son, her husband and children were together.\n<\/p>\n
Salmabibi
\n\tMaqbool Mohammed Sheikh, injured witness and wife of brother of
\n\tdeceased, P.W.4, Exh.22, in her examination, after narration of the
\n\tincident, stated that somebody from the mob had poured kerosene and
\n\tthe fire was set on the brother of her husband.  She stated that she
\n\thad not seen as to who were present in the mob nor she could
\n\tidentify anybody.  She admitted that the police statement was
\n\trecorded.  It is at that stage, she was declared hostile.
\n\tThereafter, she admitted that in the police statement, she had
\n\tstated that one vegetable vendor of Math village who is also giving
\n\tvegetable to them had called her father-in-law and thereafter,
\n\tstarted abusing since the father-in-law denied to come out.  The
\n\tiron pipe was thrown on the house which was caught hold by her.  She
\n\tdenied the contents of the statement giving name of Saniyo driver
\n\tfor pouring kerosene.  She also denied the contents of the statement
\n\tgiven before the police that Saniyo driver had assaulted her
\n\tfather-in-law with the sword and blows were given on the motorcycle.
\n\t In the cross-examination, she stated that on the date of the
\n\tincident, who had given blow and who were present in the mob could
\n\tnot identified by her.   The persons who were present in the Court
\n\twere shown to her and she said that none of the accused were present
\n\ton the date of the incident.  She stated that at the time when the
\n\tpolice had come, they had hided themselves behind the house of
\n\tMohanbhai Sindhi.\n<\/p>\n
The
\n\tprosecution has been able to prove the injury upon the deceased as
\n\twell as upon the other injured who are also witnesses by the medical
\n\tevidence of Jayant Nagardas Solanki, P.W.5, Exh.23 and
\n\tDr.Rameshchandra Harijan Shrimali, P.W.6, Exh.25.  I.O. Dalpatsinh,
\n\tP.W.7, Exh.30, has in his deposition supported the case of the
\n\tprosecution by bringing inquest panchnama and he also stated of
\n\thaving recorded the statement of the witnesses and submitting report
\n\tto the concerned Court.\n<\/p>\n
The
\n\taforesaid goes to show that the incident is proved of the injury
\n\treceived by the deceased as well as by the other injured persons.
\n\tHowever, so far as the involvement of the accused in the incident is
\n\tconcerned, if the deposition of the aforesaid four persons who as
\n\tper the prosecution case were eye witnesses, viz. Mohammed Hanif,
\n\tP.W.1, Exh.18, Maqbool Mohammed, P.W.2, Exh.20, Zubedabibi, P.W.3,
\n\tExh.21 and Salmabibi, P.W.4, Exh.22, have not at all supported the
\n\tcase of the prosecution and on the contrary, except the complainant,
\n\tMohammed Hanif, P.W.1, Exh.18, other witnesses were declared hostile
\n\tat the request of the learned Special PP.  The complainant also for
\n\tthe involvement of the accused has not supported the case of the
\n\tprosecution.  All the aforesaid four witnesses have denied the
\n\tpresence of the accused at the time of incident in the mob.  Under
\n\tthese circumstances, the finding recorded by the learned Sessions
\n\tJudge for failure on the part of the prosecution to prove the case
\n\tfor guilt of the accused in the alleged incident for which they were
\n\tcharged, cannot be said to be erroneous.  Hence, as such, it can be
\n\tsaid that the learned Sessions Judge has not committed error in
\n\tacquitting the accused for the offences for which they were charged.\n<\/p>\n
 CRIMINAL
\nAPPEAL NO.475\/05 WITH CRIMINAL APPEAL NO. 2016\/05 SESSIONS CASE
\nNO.225\/04)<\/p>\n
It
\n\tappears that thereafter, as the complaint was filed by Mohammed
\n\tHanif Abdul Sheikh to the Human Rights Commission and the State
\n\tGovernment had directed for further investigation of certain cases,
\n\tin the present above referred complaint also, there was further
\n\tinvestigation and the supplementary charge-sheet for the offences
\n\tunder sections 302, 395, 396, 307, 436, 435, 427, 120B, 295 of the
\n\tIPC read with section 135 of the Bombay Police Act was filed on
\n\t24.06.2004 before the learned Judicial Magistrate, Santrampur,
\n\tagainst Rameshbhai Ratnabhai Bamania (appellant of Criminal Appeal
\n\tNo.475\/05) and Manglabhai Nathabhai Damod (appellant of Criminal
\n\tAppeal No.2016\/05).  The same was subsequently registered as
\n\tSessions Case No.225\/04.\n<\/p>\n
The
\n\tprosecution in order to prove the guilt of the accused, examined 22
\n\twitnesses and produced 13 documentary evidences, the details whereof
\n\tare available in the judgement of the learned Sessions Judge at para\n<\/p>\n
\t5.  The learned Sessions Judge, thereafter recorded the statement of
\n\tthe accused under section 313 of the CRPC wherein they denied the
\n\tmaterial against them and stated that a false case is filed against
\n\tthem.  Thereafter, the learned Sessions Judge heard the matter and
\n\tfound that the accused are not guilty for the offences under
\n\tsections 395, 396, 307, 417, 235, 120B of IPC read with section 135
\n\tof the Cr.P.C., but the accused are guilty for offences under
\n\tsection 304 Part II, 435 and 436 of the IPC.  The learned Sessions
\n\tJudge thereafter, also heard the matter on the aspects of sentence
\n\tand ultimately, imposed sentence as referred to hereinabove.  Under
\n\tthese circumstances, the present appeal by both the accused
\n\tseparately before this Court.\n<\/p>\n
The
\n\tevidence of Doctor Rameschandra Harjivan Shrimali as well as
\n\tDr.Jayant Nagardas Solanki for the injury sustained by the deceased
\n\tand the victim has remained consistent as were in the earlier
\n\tSessions Case Nos.123\/02 and 393\/02.  On the aspects of the proof of
\n\tthe incident of the injury caused, it appears to us that there is no
\n\tmaterial difference in the evidence of both the witnesses as was
\n\tthere in the earlier sessions cases.  Having found about the
\n\tincidence, the prosecution has been able to prove the case that the
\n\tmob had caused  injury to the deceased and the other witnesses
\n\tincluding the complainant, on the aspects of involvement of the
\n\taccused of the present case, who shall be referred to as A1 and A2,
\n\tthe scrutiny would be required, to be made further.\n<\/p>\n
As
\n\tper the case evidence of the complainant, Mohammed Hanif Abdulrahim
\n\tSheikh, P.W.3, Exh.24, he has stated in the complaint that there
\n\twere 8 persons out of which Manglabhai Kohyabhai of Sadavda who used
\n\tto come to sell vegetable to Divda colony was there.  As per the
\n\tsaid witness, at about 11.45, the said Manglabhai Kohyabhai had came
\n\tand called him outside the house, but when he denied, he threw the
\n\tiron rod on the gate of the bunglow and made an attempt to give
\n\tassault and the showcase inside the bunglow was broken.  He then
\n\tstated that this Manglabhai had set on fire log of wood which was
\n\tlying nearby the house and then he climbed up in the verandah and
\n\tset fire in the veranda. He also stated that 8 persons had
\n\tsurrounded by giving blows and Ramesh Ratna gave a blow to his son
\n\tMaqbool on the head and on the back side with the pipe.  He has
\n\tdeposed that his son Maqsood was pulled out of fencing  and when
\n\tthey went inside the house, his son Maqsood was already set to fire.
\n\t He also stated that the police came at about 2.05 O  Clock  and
\n\ttold that now the time is over and the persons of the mob with sword
\n\tand pipe and Kerba had already gone away.  He also identified the
\n\taccused who were present in the Court and also identified pipe which
\n\twas discovered as mudammal.  In the cross examination, the said
\n\twitness when was confronted with the earlier deposition before the
\n\tCourt, he said that because of fear, he had given earlier deposition
\n\tin earlier cases and he also stated that in the application made to
\n\tHuman Rights Commission, such details were not mentioned.  He
\n\tadmitted that in the earlier cases, in the open court, his
\n\tdeposition was recorded on oath.   He voluntarily stated that the
\n\tsame was because of fear.  He stated that because of fear, he had
\n\tinformed to the concerned authority and he also stated that he is
\n\tready to produce the papers and after seeing those papers, he can
\n\tsay that on which date, such representation was made.  He admitted
\n\tthat he had the knowledge that the accused of the earlier cases were
\n\tacquitted.  He admitted the contents of the complaint and he stated
\n\tthat in the complaint he had given name of Ramesh Ratna and Mangal
\n\tNatha.  Both were identified by him before the police when
\n\tIdentification Parade was held by the police.  He confirmed that in
\n\tSessions Case No.393\/02, his deposition was recorded before the
\n\tCourt and upon this admission, the earlier deposition recorded in
\n\tSessions Case No.393\/02 of the very witness was accepted in the
\n\tevidence by giving Exh.27 in the present Sessions case.  However, he
\n\tstated that he had identified the accused, but because of fear, he
\n\tdid not state in the deposition the name of the accused. He also
\n\tconfirmed that in earlier Sessions Case No.123\/02, which was against
\n\tNarendra @ Gatubha, his deposition was recorded.  He confirmed that
\n\the had signed the police statement and in the police statement in
\n\twhich his signatures were there are correct and others are not
\n\tcorrect.  He denied that in the earlier deposition, he had not
\n\tidentified anyone and that is why today he is saying that because of
\n\tfear, he had given such deposition.  He denied that before the
\n\tpolice, he had not stated that  Manglabhai Kohyabhai of Sadavda
\n\thad set fire  or  Rameshbhai Ratnabhai had given blow of iron
\n\tpipe over the head and the backside of his son Maqsood and he had
\n\tfallen down .\n<\/p>\n
The
\n\tpertinent aspect is that in the complaint, the content of which is
\n\tadmitted by him, he has stated that he had identified Tikubapu of
\n\tKadana, Pradipbapu ST driver, brother of Pradipbapu who is running
\n\tjeep and one vegetable merchant of Math village to whom he can
\n\tidentify and Saniyo Driver of Saliya Muvadi and other Bapus of
\n\tPangalla of Divda village.  There is no specific reference to the
\n\tname of any of the accused of the present case. The vegetable
\n\tmerchant who has been referred, is stated to be of Math and not of
\n\tvillage Sadavda.\n<\/p>\n
The
\n\tprosecution had also examined Jubedabibi Mohammedali Sheikh, P.W.4,
\n\tExh.30.  In the examination in chief, she has stated that one
\n\tvegetable merchant had called her husband to come out and she had
\n\tstated that Rameshbhai Vagadia had given blows on the head and
\n\tbackside of her son.  Rameshbhai Vagadia is identified by her in the
\n\tCourt and she  also identified the pipe, mudammal article No.1.  In
\n\tthe cross examination, she confirmed that in the earlier cases, two
\n\ttimes, her deposition was recorded and she confirmed that she had
\n\tstated the correct facts therein.  She stated that she has no
\n\tdispute for the accused who have been acquitted in the earlier cases
\n\twherein her deposition was recorded.  She admitted that in the
\n\tpolice statement, she had stated that the vegetable merchant had
\n\tstarted abusing and had set fire by breaking open, had indulged into
\n\tthe activity of destruction and had set fire. She also admitted that
\n\tin the police statement, she did not mention that Ramesh Vagadia had
\n\tgiven blow upon her son on the backside and on the head.\n<\/p>\n
The
\n\tpertinent aspect is that this witness has not disowned or
\n\tcontradicted the factum of her deposition made before the Court and
\n\tthe contents of those depositions and she has admitted the contents
\n\tof her police statement.\n<\/p>\n
Salmabibi
\n\tMaqbool Mohammed Hanif Sheikh, P.W.5, Exh.33 is the next witness
\n\texamined by the prosecution.  She in her examination in chief had
\n\tstated that the vegetable merchant whose name is Manglabhai and who
\n\tis present in the Court was abusing from outside and was calling her
\n\tfather-in-law. She stated that the accused Manglabhai had inflicted
\n\tiron pipe and she pulled away the same.  She has not stated the name
\n\tof the person who had given blow on the head of the brother of her
\n\thusband-deceased nor the name of the person who set on fire the
\n\tdeceased.  In the cross examination of the said witness, she stated
\n\tthat in the earlier deposition that was made before the Court, she
\n\thad made false statement and she knows that if false statement is
\n\tmade, the same is an offence.  She stated that she had not filed any
\n\tcomplaint before any one if any threat was given or the monetary
\n\tinducement was given for making false statement earlier.  She
\n\tadmitted that whatever was left out in the earlier deposition of
\n\tearlier cases, was stated by her father-in-law in the application
\n\tmade to Human Rights Commission.  She had stated that she does not
\n\tknow anybody by name.\n<\/p>\n
The
\n\tpertinent aspect is that in the application made to the Human Rights
\n\tCommission, the name is mentioned of vegetable merchant Manglabhai
\n\tVagadia of Sadavda village for his presence in the mob and for
\n\tabusing and the name of Rameshbhai Ratnabhai and other accused is
\n\tnot mentioned.  She has admitted the earlier deposition stating that
\n\tit was false, without there being any other explanation of fear etc.<\/p>\n
The
\n\tother witnesses Illiyas Haji Kayyum, p.w.6, Exh.47, who is witness
\n\tfor inquest panchnama has turned out to be hostile.  The witness
\n\tVinhubhai Shankarbhai, P.W.7, Exh.49 in the arrest panchnama of
\n\tRameshbhai Ratnabhai and recovery of pipe has turned to be hostile.\n<\/p>\n
Hifzur
\n\tRehman Usmangani, P.W.8, Exh. 51, who is panch witness for
\n\tidentification of Manglabhai, has supported the case of prosecution
\n\tfor preparation of the panchnama. It may be recorded that the
\n\tidentification of the said accused by the complainant before police
\n\tis when he was in police custody.\n<\/p>\n
Dalpatsinh
\n\tHamirsinh Rathod, p.w.10, Exh.55, has confirmed that initially, he
\n\thad arrested Narendrasingh and charge-sheet was filed and complaint
\n\ton the spot was registered against Tikubapu, Pradipbapu ST driver,
\n\tbrother of Pradipbapu who is running jeep one vegetable merchant of
\n\tMath village whose name is not known and Saniyo driver and he also
\n\tconfirmed that he had not arrested the present accused earlier.\n<\/p>\n
Kalubhai
\n\tPunjabhai Damor, who is panch witness, P.W.12, Exh.63,  Masiullah
\n\tMohammedrafiq Patel, P.W.13, Exh.64, who is panch witness for
\n\tidentification of accused No.2 in the police custody, have turned
\n\thostile. Attaullahkhan Mohammedkhan Pathan, P.W.14, Exh.66, who is
\n\talso panch witness and Jafar Mohammed Sindhi, another panch witness,
\n\tP.W.15, Exh.67, Motibhai Bhurabhai Machi, P.W.16, Exh.69, have
\n\tturned to be hostile.\n<\/p>\n
The
\n\taforesaid are the major pieces of evidence which are required to be
\n\tconsidered.  The judicial scrutiny is required to be made to the
\n\tjudgement of the learned Sessions Judge in light of the aforesaid
\n\tevidence read with the relevant provisions of the law.  If the
\n\tjudgement of the learned Sessions Judge which is impugned in the
\n\tpresent appeal is considered, the reasons are stated to be from para
\n\t9 onwards.  However, upto para 30, there is narration of the
\n\tstatement made by the respective witnesses who are examined by the
\n\tprosecution.  Paras 31 and 32 are the statements made on behalf of
\n\tthe prosecution as well as by the defence.  The consideration of the
\n\tmatter by the learned Sessions Judge and rather for examination of
\n\tthe contention begins from para 33 of the judgement.  When the
\n\tlearned Sessions Judge considered the matter in the earlier sessions
\n\tcases, he found that the earlier decision would not be applicable
\n\tsince he also exercises the same power.  On the aspect of
\n\tappreciation of evidence, when the matter is considered by him, he
\n\tfinds that the medical evidence is supported by the evidence of the
\n\twitnesses.  However, an erroneous finding is that no question is put
\n\tto the witness Mohammed Hanif, P.W.3, Exh.24 for the involvement of
\n\tthe accused.  At that stage, the learned Sessions Judge has lost
\n\tsight of considering the matter for contradiction in the deposition
\n\tof the said witness in earlier sessions case Nos. 225\/04 and 393\/02.\n<\/p>\n
While
\n\tappreciating the evidence of Zubedabibi Mohammed Hanif, Salmabibi,
\n\tsubsequently, the learned Sessions Judge has considered the defence
\n\tthat in the earlier deposition, the accused therein were acquitted.
\n\tWhile considering the defence of the accused, based on the
\n\tdeposition in the earlier case, the learned Sessions Judge has
\n\tabsolutely lost sight of the important aspect of the evidentiary
\n\tvalue and material contradiction, if any, in both the depositions as
\n\tto whether any sufficient explanation is coming on record of the
\n\twitness and even if the explanation is there on record, whether such
\n\texplanation if decided on the reasonable prudence, should be
\n\taccepted or not.  The aspects of contradiction in the deposition
\n\tmade before the Court of the respective witnesses, more
\n\tparticularly, on the aspects that they could not identify any
\n\tperson, would frustrate the evidentiary value of the deposition made
\n\tbefore this Court in the present before the Sessions Case or not and
\n\tif yes, to what extent and if not for what reason are not at all
\n\tconsidered by the learned Sessions Judge.  Instead of considering
\n\tthe said aspect, the learned Sessions Judge has stated that the
\n\tevidentiary value of the deposition of the earlier case cannot be
\n\tdecided in the present case and the deposition recorded in the
\n\tpresent case is only required to be considered.  It is true that the
\n\tdeposition or the evidence led in the present case was required to
\n\tbe taken into consideration, but in the present case itself, the
\n\twitnesses have confirmed the deposition and to some extent,
\n\texplanation is also given by witnesses.  Not only that, but the
\n\tdeposition so recorded in the earlier sessions Case Nos. 393\/02 of
\n\tthe concerned witnesses were produced and exhibited.  One of the
\n\twitnesses Salmabibi, P.W.5, has stated to the extent that in the
\n\tearlier deposition, she had made false statement before the Court.
\n\tFurther knowing well that making a false statement is an offence.
\n\tThe witness Zubedabibi, P.W.4, Exh.30, confirmed that her deposition
\n\twas recorded earlier in the Court and she had stated that her
\n\tdeposition was recorded earlier in the Court and she had stated true
\n\tfacts.  She also confirmed for not giving names in the statement
\n\trecorded before the police.  The complainant Mohmmed Hanif, p.w.3,
\n\tEx.24 has also confirmed the said deposition by admitting the same,
\n\tbut the explanation given is of fear at the relevant point of time.
\n\tHe admits the complaint given by her to the police.  If the contents
\n\tof the said complaint are considered as it is, the name of any of
\n\tthe accused, if not stated in the complaint and denied in the
\n\tdeposition also was required to be considered.  Further, whether the
\n\texplanation of fear that the earlier deposition was recorded could
\n\tbe believed or not was also an aspect to be considered by the
\n\tlearned Sessions judge.  It appears that the learned Sessions Judge
\n\thas totally lost sight of consideration of the contradiction and the
\n\tevidentiary value to be given thereafter, in the present case.\n<\/p>\n
At
\n\tthis stage, we may refer to the provisions of section 145 of the
\n\tEvidence Act, which reads as under:\n<\/p>\n
 145.
\n\tCross-examination as to previous statements in writing –
\n\tA witness may be cross-examined as to previous statements made by
\n\thim in writing or reduced into writing and relevant to matter in
\n\tquestion, without such writing being shown to him, or being
\n\tproved; but if it is intended to contradict him by the writing, his
\n\tattention must, before the writing can be proved, be called to those
\n\tparts of it which are to be used for the purpose of contradicting
\n\thim.\n<\/p>\n
The
\n\tlearned counsel appearing for the appellant contended that the
\n\trequirement of section 145 of the Evidence Act was satisfied to
\n\tcontradict the witness by the respective witness by their deposition
\n\tmade in the earlier sessions cases, more particularly on the aspect
\n\tthat the concerned witness had stated before the Court that they
\n\tcould not identify anybody who were in the mob.  Whereas, it was
\n\tsubmitted that the question put to the witnesses in the
\n\tcross-examination and the admission of giving deposition and also
\n\tadmission of making statement before the Court in earlier cases and
\n\tproduction of the deposition made by the concerned witnesses in the
\n\tearlier sessions cases for the same complaint and having exhibited
\n\tin the evidence by the Sessions Court, can be said as substantial
\n\tcompliance to the provisions of section 145 of the Evidence Act.  It
\n\twas submitted that if the contradiction is found to be proved, the
\n\tevidentiary value of the deposition of the so called eyewitness
\n\tcould be said as having lost and the substratum of the case of the
\n\tprosecution would also be lost and the accused would be entitled to
\n\tthe benefit thereof.\n<\/p>\n
The
\n\tlearned counsel for the appellant-accused relied upon the decision
\n\tof the Apex Court in the case of Bhagwan Singh v. State of Punjab
\n\treported at AIR 1952 SC 214, more particularly the observations made
\n\tat para 26, that there cannot be a hard and fast rule and what is
\n\trequired is as to whether the witness was treated fairly and was
\n\tafforded a reasonable opportunity of explaining the contradiction
\n\tafter his attention was drawn or not.  The learned counsel submitted
\n\tthat in the said case, the Apex Court found that the matter would be
\n\tone of the substance and not of mere form.  In his submission, in
\n\tthe present case, the compliance was already made of section 145 of
\n\tthe Act.  He also relied upon the another decision of the Apex Court
\n\tin the case of Gopal v. Subhash reported at AIR 2004 SC page 4900
\n\tand more particularly, the observations made at paras 18 and 19 and
\n\tcontended that even if there is omission in the statement made
\n\tbefore the police, it may result into material contradiction and the
\n\taccused would be entitled to the benefit since the provisions of
\n\tsection 145 of the Evidence Act in substance was already complied
\n\twith.\n<\/p>\n
Whereas
\n\tthe learned APP contended that there is no compliance to the
\n\tprovisions of section 145 of the Evidence Act by the accused,
\n\ttherefore, the evidentiary value of the deposition recorded would
\n\tnot at all be lost of the respective eyewitnesses.  He relied upon
\n\tthe decision of the decision of this Court in the case of Ambalal
\n\tNathalal Vs. State of Gujarat reported in 2004(3)GLH 691 and more
\n\tparticularly the observations made at paras 18 and 19 of the said
\n\tdecision.  He submitted that each and every statement of the witness
\n\tis required to be put to him and the witness is required to be given
\n\topportunity to give the explanation, then only it can be said that
\n\tthe contradiction is proved in accordance with section 145 of the
\n\tEvidence Act.  He submitted that mere asking the question generally
\n\tof the deposition and the statement made therein by production of
\n\tthe said deposition would not result into compliance of provisions
\n\tof section 145 of the Evidence Act.  He also submitted that the
\n\tdeposition of even hostile witness as per the decision of the Apex
\n\tCourt in the case of Koli Lakhmanbhai Chandabhai Vs. State of
\n\tGujarat reported at 2000(2)GLH 567, also cannot be washed away and
\n\tthe said deposition to the extent if supports the case of the
\n\tprosecution is required to be considered.  He therefore submitted
\n\tthat if there is non-compliance to the provisions of section 145 of
\n\tthe Evidence Act, the benefit would not be available to the accused.\n<\/p>\n
Had
\n\tit been a case where the learned Sessions Judge has considered the
\n\taspects as to whether the provisions of section 145 of the Evidence
\n\tAct has been complied with or not and had it been a case where after
\n\tconsideration of the provisions of section 145 of the Evidence Act,
\n\tthe learned Sessions Judge had appreciated and considered the
\n\tevidentiary value of the deposition of the witnesses and more
\n\tparticularly, the deposition of the eyewitnesses, it might stand on
\n\tdifferent consideration and in the present appeal, the scope would
\n\thave been as to whether such could be said to be reasonable or not?
\n\tIn the impugned judgement, whether there is a compliance to the
\n\tprovisions of section 145 of the Evidence Act for bringing
\n\tcontradiction and if yes, to what extent and the effect upon the
\n\tcase of the prosecution of such contradiction or omission, if any,
\n\tas the case may be was a must.  It is only thereafter, the matter
\n\tcould have been further examined by the learned Sessions Judge for
\n\ttracing the guilt by involvement of the accused in the incident.\n<\/p>\n
On
\n\tthe aspect of identification of the accused, it appears that there
\n\tis not proper discussion by the learned Sessions Jude as was
\n\trequired in the present case.  It is not considered by the learned
\n\tSessions Judge that there are peculiar circumstances inasmuch as in
\n\tthe complaint, the names of the present accused were not given.
\n\tFurther, after the complaint, in the earlier two sessions cases, the
\n\tvery witnesses after stating the names of certain persons in the
\n\tcomplaint, had deposed before the Court that they could not identify
\n\tany one in the mob.  Thereafter, in further investigation which has
\n\tled to the present sessions case, after arrest, when the accused
\n\twere in custody, were identified by the complainant.  It is not
\n\tconsidered by the learned Sessions Judge that if the accused were
\n\tknown to the complainant, their name could have been stated in the
\n\tvery complaint and if not known and identity was not clear, holding
\n\tof the identification parade was required to be held or not.  It
\n\talso appears that as per the observations made by the learned
\n\tSessions Judge, the police machinery had a soft peddling approach in
\n\tthe matter of investigation, then also, nothing prevented the
\n\tlearned Sessions Judge to examine the aspects of proving the
\n\tidentity of the accused by the prosecution or in any case, the
\n\teffect of not holding of the identification parade and the
\n\tidentification made before the police in custody in the present
\n\tcase.  It appears to us that the aforesaid two aspects were also
\n\tvitally important, which may have bearing to the record of the guilt
\n\tof the accused or otherwise.\n<\/p>\n
Apart
\n\tfrom the above referred aspects, it further appears that after
\n\tconsideration of the evidence of the witnesses by the learned
\n\tSessions Judge at paras 38, 39 and  40, he finds that there is no
\n\tcertain and concrete evidence coming on record that the present
\n\taccused had pulled on Maqsood outside the home and had sprinkled the
\n\tkerosene and had set on fire and the blow of pipe was given.  The
\n\tlearned Sessions Judge has further found that though there is no
\n\tdirect evidence, but the circumstantial evidence leads to the guilt
\n\tof the accused.  It is also not considered by the learned Sessions
\n\tJudge that the prosecution case is of direct evidence of eye
\n\twitnesses and not of the circumstantial evidence.  The learned
\n\tSessions Judge has recorded the finding that the accused was present
\n\tat the time of the incident, but when Maqsod was pulled away and set
\n\ton fire, their presence was not there, but the involvement of the
\n\taccused is found from their presence. The learned Sessions Judge
\n\tfurther found that from the circumstantial evidence, it does not
\n\ttranspire that the present accused had assaulted the complainant and
\n\tthe witness, but in the whole episode, the presence of the accused
\n\tis seen and it is certainly proved that they have set on fire the
\n\thouse of the complainant and the witnesses.  The learned Sessions
\n\tJudge has observed that the conduct of the accused leads to the
\n\tguilt by circumstantial evidence of homicidal death of the deceased
\n\tMaqsood.  At the end of para 40 of the judgement, the learned
\n\tSessions Judge has found that the excitement of the accused may not
\n\tbe the same as with the other accused and there is no direct
\n\tevidence available for causing death of deceased Maqsood against the
\n\taccused, but their presence and the involvement for setting the fire
\n\tto the house of the complainant and the witnesses can be termed as
\n\tnot the murder, but a culpable homicide.\n<\/p>\n
It
\n\tappears to us that the aforesaid finding of the learned Sessions
\n\tJudge is by various self-contradiction in itself. There is no clear
\n\tfinding after considering the evidence of the witnesses including
\n\tfather considering the contradiction, if any, as to whether the
\n\taccused in the present case are involved or not. In our considered
\n\tview, it was required for the learned Sessions to appreciate and
\n\tconsider the evidence in depth and the finding was required to be
\n\trecorded thereafter accordingly.  We find that the learned Sessions
\n\tJudge has also not taken into consideration as to whether the
\n\tingredients for the offences for which the accused concerned were
\n\tcharged have been satisfied in the present case and if yes, to what
\n\textent. The guilt recorded by the learned Sessions Judge of the
\n\taccused for the offence under sections 304 Part-2, 435, 436 of the
\n\tIPC can be said as without at all proper application of mind and
\n\twithout proper consideration of the material and evidence available
\n\ton record, more particularly, after considering the evidentiary
\n\tvalue of the testimony of the eyewitnesses.\n<\/p>\n
At
\n\tthis juncture, it would be worthwhile to refer to the decision of
\n\tthe Apex Court in the case of Zahira Hibibullah H. Sheik Vs. State
\n\tof Gujarat reported at 2004(4) SCC 158 on the aspect of approach of
\n\tthe Court and more particularly in communal riot cases. At para 35,
\n\tit was observed inter alia thus, relevant of which is as under:\n<\/p>\n
 If
\na criminal Court is to be an effective instrument in dispensing
\njustice, the Presiding Judge must cease to be a spectator and a mere
\nrecording machine by becoming a participant in the trial evincing
\nintelligence, active interest and elicit all relevant materials
\nnecessary for reaching the correct conclusion, to find out the truth,
\nand administer justice with fairness and impartiality both to the
\nparties and to the community it serves. Courts administering criminal
\njustice cannot turn a blind eye to vexatious or oppressive conduct
\nthat has occurred in relation to proceedings, even if a fair trial is
\nstill possible, except at the risk of undermining the fair name and
\nstanding of the judges as impartial and independent adjudicators.\n<\/p>\n
At
\npara 38, it was observed thus:\n<\/p>\n
 A
\ncriminal trial is a judicial examination of the issues in the case
\nand its purpose is to arrive at a judgment on an issue as a fact or
\nrelevant facts which may lead to the discovery of the fact issue and
\nobtain proof of such facts at which the prosecution and the accused
\nhave arrived by their pleadings; the controlling question
\nbeing the guilt or innocence of the accused. Since the object is to
\nmete out justice and to convict the guilty and protect the innocent,
\nthe trial should be a search for the truth and not a bout over
\ntechnicalities, and must be conducted under such rules as will
\nprotect the innocent, and punish the guilty. The proof of charge
\nwhich has to be beyond reasonable doubt must depend upon judicial
\nevaluation of the totality of the evidence, oral and circumstantial
\nand not by an isolated scrutiny.\n<\/p>\n
At
\npara 40, it was observed thus-\n<\/p>\n
 The
\nfair trial for a criminal offence consists not only in technical
\nobservance of the frame and forms of law, but also in recognition and
\njust application of its principles in substance, to find out the
\ntruth and prevent miscarriage of justice.\n<\/p>\n
At
\npara 44, it was observed on the aspect of interpretation of section
\n165 of the Evidence Act read with section 311 of the Cr.P.C. that –\n<\/p>\n
 Object
\nof the Section is to enable the Court to arrive at the truth
\nirrespective of the fact that the prosecution or the defence has
\nfailed to produce some evidence which is necessary for a just and
\nproper disposal of the case. The power is exercised and the evidence
\nis examined neither to help the prosecution nor the defence, if the
\nCourt feels that there is necessity to act in terms of Section 311
\nbut only to subserve the cause of justice and public interest. It is
\ndone with an object of getting the evidence in aid of a just decision
\nand to uphold the truth.\n<\/p>\n
At
\npara 56, it was observed thus:\n<\/p>\n
 56.
\nAs pithily stated in Jennison v. Backer (1972 (1) All E.R. 1006),
\n“The law should not be seen to sit limply, while those who defy
\nit go free and, those who seek its protection lose hope”. Courts
\nhave to ensure that accused persons are punished and that the might
\nor authority of the State are not used to shield themselves or their
\nmen. It should be ensured that they do not wield such powers which
\nunder the Constitution has to be held only in trust for the public
\nand society at large. If deficiency in investigation or prosecution
\nis visible or can be perceived by lifting the veil trying to hide the
\nrealities or covering the obvious deficiencies, Courts have to deal
\nwith the same with an iron hand appropriately within the framework of
\nlaw. It is as much the duty of the prosecutor as of the Court to
\nensure that full and material facts are brought on record so that
\nthere might not be miscarriage of justice. (See Shakila Abdul Gafar
\nKhan (Smt.) v. Vasant Raghunath Dhoble and Anr.)  <\/p>\n
On
\nthe aspect of contradiction of the evidence, it was inter alia
\nobserved by the Apex Court at para 59, relevant of which reads as
\nunder:\n<\/p>\n
 It
\nis only after admission, the Court should consider in each case
\nwhether on account of earlier contradiction before Court and the
\ntestimony allowed to be given as additional evidence, which of them
\nor any one part or parts of the depositions are creditworthy and
\nacceptable, after a comparative analysis and consideration of the
\nprobabilities and probative value of the materials for adjudging the
\ntruth. To reject it merely because of contradiction and that too in a
\nsensitised case like the one  before Court with a horror and terror
\noriented history of its own would amount to conspicuous omission and
\ndeliberate dereliction of discharging functions judiciously and with
\na justice-orientated mission. In a given case when the Court is
\nsatisfied that for reasons on record the witness had not stated
\ntruthfully before the trial Court and was willing to speak the truth
\nbefore it, the power under Section 391 of the Code is to be
\nexercised. It is to be noted at this stage that it is not the
\nprosecution which alone can file an application under Section 391 of
\nthe Code. It can also be done, in an appropriate case by the accused
\nto prove his innocence. Therefore, any approach without pragmatic
\nconsideration defeats the very purpose for which Section 391 of the
\nCode has been enacted.\n<\/p>\n
If
\n\tthe judgement of the learned Sessions Judge is examined in light of
\n\tthe aforesaid observations of the Apex Court, it appears to us that
\n\tthere is no proper examination of the issues which arise for
\n\tconsideration by the learned Sessions Judge and there is clear
\n\tnon-application of mind and also omission to consider certain
\n\taspects which go to the root of the prosecution case and also
\n\tcertain aspects which may have direct bearing to the case of the
\n\tprosecution if the guilt of the accused is to be traced for
\n\tinvolvement in the offence for which the accused were charged.\n<\/p>\n
In
\n\tthe decision of the Apex Court in the case of Popular Muthiah Vs.
\n\tState reported at 2006(7) SCC, 296, on the aspects of scope of power
\n\tof this Court under section 386 read with section 482 of the
\n\tCr.P.C., it was observed by the Apex Court at paras 27, 29 and 30 as
\n\tunder:\n<\/p>\n
 27…..While
\nexercising its appellate power, the jurisdiction of the High Court
\nalthough is limited but, in our opinion, there exists a distinction
\nbut a significant one being that the High Court can exercise its
\nrevisional jurisdiction and\/ or inherent jurisdiction not only when
\nan application therefor is filed but also suo motu.  It is not in
\ndispute that suo motu power can be exercised by the High Court while
\nexercising its revisional jurisdiction.  There may not, therefore, be
\nan embargo for the High Court to exercise its extraordinary inherent
\njurisdiction while exercising other jurisdictions in the matter.
\nKeeping in view the intention of the Parliament, while making the new
\nlaw the emphasis of the Parliament being ‘a case before the court’ in
\ncontradistinction from ‘a person who is arrayed as an accused before
\nit’  when the High Court is seized with the entire case although
\nwould exercise a limited jurisdiction in terms of Section 386 of the
\nCode of Criminal Procedure, the same, in our considered view, cannot
\nbe held to limit its other powers and in particular that of Section
\n482 of the Code of Criminal Procedure in relation to the matter which
\nis not before it.\n<\/p>\n
 29.\tThe
\nHigh Court while, thus, exercising its revisional or appellate power,
\nmay exercise its inherent powers.   Inherent power of the High
\nCourt can be exercised, it is trite, both in relation to substantive
\nas also procedural matters.\n<\/p>\n
 30.In
\nrespect of the incidental or supplemental power, evidently, the High
\nCourt can exercise its inherent jurisdiction irrespective of the
\nnature of the proceedings.  It is not trammeled by procedural
\nrestrictions in that <\/p>\n
power
\n\tcan be exercised suo motu in the interest of justice. If such a
\n\tpower is not conceded, it may even lead to injustice to an accused.\n<\/p>\n
Such
\n\ta power can be exercised concurrently with the appellate or
\n\trevisional jurisdiction and no formal application is required to be
\n\tfiled therefor.\n<\/p>\n
It
\n\tis, however, beyond any doubt that the power under Section 482 of
\n\tthe Code of Criminal Procedure is not unlimited.  It can inter alia
\n\tbe exercised where the Code is silent where the power of the court
\n\tis not treated as exhaustive, or  there is a specific provision in
\n\tthe Code; or the statute does not fall within the purview of the
\n\tCode because it involves application of a special law.   It
\n\tacts ex debito justitiae.  It can, thus, do real and substantial
\n\tjustice for which alone it exists.        (Emphasis
\n\tsupplied) <\/p>\n
In
\nthe said decision, at para 56, it was observed thus-\n<\/p>\n
 56.\tSo
\nfar as inherent power of the High Court is concerned, indisputably
\nthe same is required to be exercised sparingly.  The High Court may
\nor may not in a given situation, particularly having regard to lapse
\nof time, exercise its discretionary jurisdiction.   For the
\nsaid purpose, it was not only required to apply its mind to the
\nmaterials on records but was also required to consider as to whether
\nany purpose would be served thereby. \t  (Emphasis
\nsupplied) <\/p>\n
The
\npertinent aspect is that in the very decision, at para 24, it was
\nobserved by the Apex Court, the relevant of which reads as under:\n<\/p>\n
  The
\nHigh Court apart from exercising its revisional or inherent power
\nindisputably may also exercise its supervisory jurisdiction in terms
\nof Article 227 of the Constitution of India and in some matters
\nin terms of Section 483 thereof.   The High Court, therefore, has a
\nprominent place in the Code of Criminal Procedure vis-`-vis the court
\nof Sessions which is also possessed of a revisional power.\n<\/p>\n
(Emphasis
\nsupplied) <\/p>\n
It
\n\tis in this light of the aforesaid fact situation of the present
\n\tcase, we have to exercise the power by taking recourse to the
\n\tappellate power read with the inherent power of this Court under the
\n\tCode of Criminal Procedure read with the power under Article 227 of
\n\tthe Constitution.  We are conscious of the fact that the present is
\n\ta case of communal riot.  That being the situation, we are also
\n\tconscious of the fact that after the direction issued by the Apex
\n\tCourt, certain sessions cases which had either resulted into
\n\tacquittal or which were pending have been further reinvestigated and
\n\tthe supplementary charge-sheet have also been filed.  In all such
\n\tcases, there may be the question of considering the evidentiary
\n\tvalue of the deposition given by the witnesses before the Court in
\n\tcontradiction to the deposition given in the earlier cases if any.
\n\tIn all such cases, the question may arise to be considered for
\n\tcompliance to the provisions of section 145 of the Evidence Act or
\n\tnot and thereafter, to consider the evidentiary value of the
\n\twitnesses.  Had it  been a case where the learned Sessions Judge in
\n\tthe present case having fully applied his mind, considered the
\n\taspects and we were to exercise the appellate power, it might have
\n\tstood on the different consideration.  Further, had it been a case
\n\twhere the case rested only on the application of section 145 of the
\n\tEvidence Act, and the consideration of the evidentiary value of the
\n\twitnesses, the matter could have been further considered by this
\n\tCourt.  However, it appears that even if the evidence is considered
\n\tas it is, the findings of the learned Sessions Judge on the aspects
\n\tof involvement of the accused are self-contradictory in itself as
\n\tobserved and discussed hereinabove.  Therefore, we find that it
\n\twould be in the interest of justice to remand the matter to the
\n\tlearned Sessions Judge for reconsideration of the evidence and to
\n\tdecide the case in light of the observations made by this Court
\n\thereinabove in the present judgement and after hearing both the
\n\tsides and to pass a fresh order.  If we consider the aspects of
\n\tcasual approach of the learned Sessions Judge to the contradiction
\n\tin the evidence of the witnesses, which is not at all being
\n\tconsidered by the learned Sessions Judge, it may result into casing
\n\tinjustice to the prosecution as well as to the accused.  In the same
\n\tmanner, if we set aside the judgement of the learned Sessions Judge
\n\ton the ground of no clear finding in the involvement of the accused
\n\tfor the offence for which he has been found guilty, the accused may
\n\tbe entitled to the benefit of technicalities and not of substance
\n\twhich may also cause great injustice to the victim or the
\n\tprosecution case.  Further, if such a casual approach is permitted
\n\ton the part of the Sessions cases and more particularly communal
\n\triots cases, such may have wider repercussions in the society in
\n\tgeneral and all the communities in particular.  Hence, we find that
\n\tin order to do complete justice to prosecution as well as to the
\n\tdefence and thereby to the victim as well as to the accused, the
\n\tinherent power of this Court under Section 482 of the Cr.P.C. is
\n\trequired to be exercised.  Not only that but with a view to set
\n\tright the judicial process at the level of the Sessions Court for
\n\tconsideration of cases, power of this Court under Article 227 of the
\n\tConstitution deserves to be exercised by remanding the matter to the
\n\tSessions Court for reconsideration of the case in accordance with
\n\tlaw.\n<\/p>\n
Under
\n\tthese circumstances, we find that it would be just and proper to
\n\tdirect the learned Sessions Judge to reconsider the matter afresh in
\n\tlight of the evidence on record keeping in view the observations
\n\tmade hereinabove and to pass afresh order.  It may be that the
\n\tlearned Sessions Judge who decided the matter may not be in the same
\n\tCourt, but it will be for the Principal Sessions Judge, to consider
\n\tthe matter and to pass the order by himself or by any Additional
\n\tSessions Judge of the district, who can exercise jurisdiction.\n<\/p>\n
We
\n\tfind that if the judgement and order of the learned Sessions Judge
\n\tis set aside, the consequence would arise for restoration of the
\n\ttrial before the learned Sessions Judge and the conviction made by
\n\tthe learned Sessions Judge at this stage will be required to be set
\n\taside.  It appears that pending the trial, the accused No.2
\n\tManglabhai Nathabhai Dhamot was in jail and he was not released on
\n\tbail, whereas accused No.1 Rameshbhai Ratnabhai Bamaniya was on bail
\n\tand even after conviction, pending the appeal, he was released on
\n\tregular bail by suspension of the sentence.  Hence, we find that the
\n\tsame situation may continue for some time, until the learned
\n\tSessions Judge decides the matter afresh in light of the
\n\tobservations made hereinabove and the directions as may be given
\n\thereinafter.\n<\/p>\n
Further,
\n\tconsideration of both the aforesaid judgement and the order of the
\n\tlearned Sessions Judge in Sessions Case No.123\/02 (Criminal Appeal
\n\tNo.46\/04) and in Sessions Case No.393\/02 (Criminal Appeal
\n\tNo.2051\/04) in light of the aforesaid observations and discussions
\n\tshows that the evidence led by the prosecution case  through the
\n\tdeposition of the witnesses of the respective cases do not lead to
\n\tthe guilt of the concerned accused in the concerned case since any
\n\tof the eye witnesses have not supported the case of the prosecution
\n\tnor have identified the concerned accused.  Further, even if the
\n\tevidence of Sessions Case No.225\/04 of the very witnesses is
\n\tconsidered, none has supported the case of the prosecution against
\n\tthe accused of Sessions Case No.123\/02 and 393\/02 nor any of the
\n\twitnesses have stated that the accused of earlier  Sessions Case
\n\tNo.123\/02 and 393\/02 were there but were not stated in the
\n\tdeposition due to fear or otherwise.  Hence, we find that no useful
\n\tpurpose would be served to remand the cases.  Hence, the judgement
\n\tand order of the learned Sessions Judges in  Sessions Case No.123\/02
\n\tand 393\/02 deserves to be confirmed and the concerned appeals
\n\tdeserve to be dismissed but with the observation that the same shall
\n\tnot operate as a bar or any impediment to the Sessions Court in
\n\treconsiderations of Sessions Case No.225\/04 as observed earlier.\n<\/p>\n
In
\n\tview of the aforesaid observation and discussions, the following
\n\torder:\n<\/p>\n
Criminal
\n\t\tAppeal No.46\/04 and Criminal Appeal No.2051\/04 as well as Criminal
\n\t\tRevision Application No.784\/04 are dismissed.\n<\/p>\n
Criminal
\n\t\tAppeal No.475\/05 and 2016\/05 are allowed to the extent that the
\n\t\timpugned judgement and order of the learned Sessions Judge is set
\n\t\taside with the direction that the Sessions Case No. 225\/04 shall
\n\t\tstand restored to the file of the learned Sessions Judge and
\n\t\tfurther it is directed that the learned Sessions Judge shall
\n\t\tconsider the matter in light of the observations made by us in the
\n\t\tpresent judgement and pass afresh order after hearing he accused as
\n\t\twell as the prosecution and  in accordance with law, as early as
\n\t\tpossible, but within a period of three months from the receipt of
\n\t\tthe order of this Court.\n<\/p>\n
It
\n\t\tis further directed that until fresh judgement and order is passed,
\n\t\tthe position as prevailed pending the trial before the learned
\n\t\tSessions Judge at the time of hearing of both the accused shall
\n\t\tcontinue, i.e., accused No.2 would continue to remain in judicial
\n\t\tcustody and accused No.1 would continue to remain on bail till
\n\t\tthen.\n<\/p>\n
In
\n\t\tview of the aforesaid observations and discussions made
\n\t\thereinabove, on the aspect of evidence on record of Sessions Case
\n\t\tNo.393\/02, and the consideration thereof by the learned Sessions
\n\t\tJudge and the appreciation by us in the present judgement, as
\n\t\tobserved hereinabove, the revision preferred by the victim against
\n\t\tthe common judgement and order of the learned Sessions Judge in
\n\t\tSessions Case No.393\/02 deserves to be dismissed.  Hence,
\n\t\tdismissed.\n<\/p>\n
All
\n\tthe appeals are disposed of accordingly.\n<\/p>\n
 (JAYANT
\nPATEL, J.)<\/p>\n
 (Z.K.\n<\/p>\n
SAIYED, J.)<\/p>\n
*bjoy<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs We on 21 July, 2010 Author: Jayant Patel,&Nbsp;Honourable Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-119679","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs We on 21 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-we-on-21-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs We on 21 July, 2010 - 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