Gujarat High Court
Jivanbhai Talsibhai Vasava vs State Of Gujarat on 22 July, 2003
Equivalent citations: (2004)1GLR460, (2004)1GLR461
Author: C.K. Buch
Bench: D.K. Trivedi, C.K. Buch
JUDGMENT C.K. Buch, J.
1. These bunch of 4 appeals have been preferred by the appellants original accused - convict persons challenging the judgement and order of conviction and sentence recorded by learned Additional Sessions Judge, Bharuch in Sessions Case No. 37 of 1996 on 13.2.1998. The Additional Sessions Judge sitting at Rajpipla has tried the accused for the offences punishable under Sections 147. 148, 149, 302, 504 and 114 of the Indian Penal Code and under Section 35 of the Bombay Police Act. At the conclusion, the learned Additional Sessions Judge held all the accused guilty of the offences punishable under Sections 147, 148, 149 and 302 of the IPC and sentenced to suffer Rigorous Imprisonment for life, for the offence under Sections 302 read with Section 149 of the IPC. All the appellants accused also have been sentenced and ordered to undergo SI for one month for offence punishable under Sections 147 and 148 of I.P.C. for each of the offence. All the sentences are ordered to run concurrently.
(i) Practically, all the accused, except accused No. 3, have preferred two appeals against the very judgement and order. As found from the record, original accused Nos. 1, 2 and 5 i.e. Jivanbhai Talsibhai, Darubhai Talsibhai, Ashwin Bhavsingbhai have filed Criminal Appeal No. 195 of 1998, original accused No. 4 i.e. Vinodbhai Jivanbhai has filed Criminal Appeal No. 271 of 1998, Original accused Nos. 2 and 5 being Darubhai Talsibhai Vasava and Ashwinbhai Bhavsingbhai Vasava have filed Criminal Appeal No. 295 of 1998 and Original accused Nos. 1, 3 and 4 being Jivanbhai Talsibhai Vasava, Harshadbhai Jivanbhai Vasava and Vinodbhai Jivanbhai Vasava have filed Criminal Appeal No. 509 of 1998. So obviously the appeal filed first in time need to be treated as admitted by the Court and have been considered as appeal preferred by the concerned appellants accused against the judgement and order i.e. Criminal Appeal Nos. 195 of 1998, 271 of 1998 and 509 of 1998 and second memo of the very appellants i.e. Criminal Appeal No. 285 of 1998 and Criminal Appeal No. 509 of 1998 qua original accused No. 1 - Jivanbhai Vasava & original accused No. 4 Vinodbhai Jivanbhai Vasava have been treated as redundant. Appellant No. 3 - original accused No. 3 has preferred only one appeal with two other co-accused and that appeal is Criminal Appeal No. 509 of 1998. One of the memo of appeal has been filed by the advocate engaged by the appellants accused persons and rest of the memos have been received by the Court through jail.
2(ii) Initially, as requested by the appellants accused, the appellants were given assistance of advocate, appointed by the Court but on the day of hearing of the appeals finally, the counsel appearing for the accused Mr. K.R. Rawal and Mr. B.S. Patel have submitted that they have instructions not to appear in the matter and respective appellants of the appeal want to engage other counsel. Mr. Brahambhatt, learned advocate, thereafter has appeared for the appellants and has submitted and accepted, before us, that he has instructions to appear on behalf of all the appellants accused persons, who are in jail at present.
2(iii) On verifying the proceedings and record, it is noticed that one of the appellants namely Darubhai Talsibhai Vasava is absconding since 25.8.2000 and obviously therefore, Mr. Brahambhatt had no instructions on his behalf. Undisputably, these group of accused appellants had requested the court to provide assistance of a counsel, so that they can represent their case before the court in a proper way. This request advanced by them at the time of admission hearing of the appeal, was accepted and the appeals of the respective appellants have been admitted by the Court. Now, the court has decided to appoint Mr. Brahambhatt to present the case of absconding accused in place of advocate Shri B.S. Patel, initially appointed by the Court. Mr. Brahambhatt has readily accepted to argue on behalf of all the appellants accused and therefore, we have heard Mr. Brahambhatt for all the appellants, in these appeals.
#.(i) Generally, we would not have asked Mr. Brahambhatt to argue the case of an absconding accused but as the other co-accused persons are in jail since their arrest in respect of the crime registered against them and all the accused persons had earlier engaged one counsel to defend them during the trial, we have appointed Mr. Brahambhatt to argue the case of absconding accused Darubhai and he has accepted the assignment. Mr. Brahambhatt has clarified that there is no conflict of interest between the accused. We record our satisfaction on this point.
3(ii) The State Government has not filed any appeal against the acquittal recorded by learned Additional Sessions Judge for the offences punishable under Sections 405, 504, 114 of the IPC and offence under Section 35 of the Bombay Police Act.
2. Mr. Brahambhatt, learned advocate for the appellants has taken us through the charge framed by learned Additional Sessions Judge at Ex. 5 and as per the charge, all the accused were asked to face trial, mainly for the offence punishable under Sections 147, 148, 149, 302,504 and 114 of the Indian Penal Code, being members of an unlawful assembly, using filthy language and deadly weapons. No specific independent charge was framed against any of the accused for their alleged individual wrong.
3. The case of the prosecution in brief is that on 11.10.1995 at about 6.30 P.M. one of the accused appellant Harshad Jivan Vasava had gone to the house of the complainant and had pelted stones and inflicted injuries on the chest of mother of deceased Abhesing and prosecution witness Bharat and thereafter, at about 10.00 P.M. on the same day, all the accused persons, forming an unlawful assembly, went at the residential house of prosecution witness Jesing and deceased Abhesinh Jesing with, deadly weapons like Axe, Dharia, stick etc. and as they were abusing PWs and using filthy language, deceased Abhesing followed by other prosecution witnesses Bharat. Suresh, Mulji, Vejuben, Shakuntala and Jesing came out of the house of Jesing as they were at the residence of PW Jesing. Because of motive attributed and deceased Abhesing was the first person to come out from the house, he was assaulted by all these accused persons and inflicted number of blows mainly on the head and chest by Dharia, Bhala and Axe etc. It is the say of the prosecution that deceased Abhesing had developed some relation with daughter of accused No. 1 - Jivanbhai Vasava namely Deenaben.It is the case of the prosecution that Deenaben was enticed and was taken away for about 15 days and both of them i.e. Deena and Abhesing stayed outside the village and even after their return, Deena was residing with Abhesing at the residence of PW Jesing. Undisputably, the deceased Abhesing was a young unmarried man of 22 years of age and was residing with his father Jesing. Abhesing was thereafter persuaded by mediators and girl Deena being minor i.e. below 18 years, it was decided to hand over the custody of minor Deena to her parents and ultimately, the custody of Deena was handed over to the parents - family namely accused persons.
5(i) It is important to mention that one of the accused namely Ashwinbhai is not the family member or in any way related to either Deena or other accused persons but he is residing in the vary village i.e. village Garda at a distance of around 200 ft. from the residence of deceased Abhesing. While appreciating the case of the prosecution as well as the submissions advanced by counsel appearing for the appellants, we will deal with this aspect hereafter but we feel it proper to mention here that it is the say of the defence counsel that this Ashwin was the person, who had persuaded Abhesing and his family members to hand over custody of Deena to parents of minor Deena. So, according to the prosecution, the motive for commission of offence is the act of enticing Deena by deceased Abhesing, which had resulted into enmity between both families or there was some dispute between two families. According to the prosecution case, accused No. 1 Jivanbhai Vasava was holding stick at relevant point of time, accused Darubhai Vasava brother of accused No. 1 was having Dharia, accused No. 3 Harshadbhai Vasava son of accused No. 1 was having Axe, accused No. 4 Vinodbhai Jivanbhai Vasava - son of accused No. 1 was having spear and accused No. 5 Ashwinbhai Bhavsingbhai Vasava was having Axe. FIR has been lodged by Bharat Jesing - brother of deceased Abhesing at Dediyapada Police Station on the next day of incident at about 10=00 AM. Neither the learned Additional Public Prosecution nor advocate appearing for the appellants have made grievance against the procedure followed by the Committal Court.
4. Counsel appearing for the appellants have taken us through the evidence, oral as well as documentary, led by the prosecution and the procedure adopted by the Investigating Agency before filing of the chargesheet. We will discuss the same at appropriate stage in the latter part of the judgement, but it is important to note at this stage that the evidence of prosecution witnesses have been recorded by five different Additional Sessions Judges on different dates, while they were holding sitting at Rajpipla and different Public Prosecutors have presented the case of the prosecution before the Court. The learned Trial Judge while holding that all the accused persons were guilty for above said offences, has placed reliance mainly on the evidence led by complainant - Bharat Jesing - PW 2 Ex. 16, PW-5 - Suresh Zinabhai, PW-10 Mulji Mansing Vasava on the medical evidence and on the opinion of FSL tendered and admitted as evidence during the course of trial. The learned Trial Judge has also relied on the evidence of prosecution witnesses namely Vejuben (Vaziben) mother of the deceased Abhesing, Jesing Nathabhai father of the deceased Abhesing, Mangiben Zinabhai - aunt of the deceased and has concluded that prosecution has successfully proved the charge against the present appellants and convicted all the accused. Practically all the above claimed witnesses have been posed as eye witnesses of the incident and therefore, their evidence have been appreciated by the learned Trial Judge in that perspective and we have also scrutinised their evidence. It is rightly argued before us that when the witnesses examined by the prosecution are in any way found interested in the case or are relatives of the deceased or victims, their evidence should be closely scrutinised. No independent witnesses have been examined by the prosecution. In response to the query raised by the Court, the counsel appearing for the appellants clearly accepted that no independent witnesses have been examined as independent witness by the complainant while filing Challen under Section 173 of the Indian Penal Code.
5. Mr. Brahambhatt, learned advocate for the appellants has submitted before us that charge framed by the trial Court is not specific and can be said to be vague and in absence of specific charge, the appellants accused have suffered serious prejudice and ultimately, same goes to the root of the case as the accused can be acquitted solely on this ground by holding that charge was not as per the scheme provided under Section 213 of the Criminal Procedure Code. The accused have suffered prejudice because of that error, which is beyond rectification and therefore, the accused should be given benefit.
6. The second point raised by Mr. Brahambhatt is that the learned Trial Judge has not appreciated the evidence of all witnesses in appropriate or legal way and in light of provisions of Section 3,6 and 9 of the Indian Evidence Act. The learned Trial Judge has mainly based his conclusion either on surmises or on conjectures and has liberally interpreted the version of the prosecution witnesses instead of scanning and evaluating the evidence strictly as the witnesses were of the category of persons, who can be said to be interested witnesses. In support of his submission, Mr. Brahambhatt has taken us through number of contradictions in the depositions of all the eye witnesses and ambiguous language used by learned Judge, whereby the learned Judge has observed that error committed by the witnesses can occur in the cases where person is not vigilant or educated or has deposed casually and therefore, such error has not been given due weightage while appreciating the say of the concerned witnesses and this has resulted into an erroneous finding and so the finding recorded by the learned Trial Judge requires to be reversed.
8(i) The third point submitted by the counsel appearing for the appellants is that there is an apparent error committed by the learned Trial Judge as the learned Trial Judge has ignored the relevant part of the evidence brought by the defence counsel on record during the course of cross examination of the witness Muljibhai. It is rightly argued that this Muljibhai was neither treated as hostile witness nor the learned Trial Judge has considered the material part of his evidence and discussed the same in the judgement. The learned Trial Judge has simply referred some part of the deposition of Mulji. As found from the cross examination of witness Mulji, he has gone to attend the meeting of Van Samiti on the unfortunate day of incident and when members of the Samiti went at village Kham, he alongwith other people of the village namely Arvind, Bhavsing, accused Jivan, accused Darubhai, Vechandadu, Chhotubhai went at village Kham and he has stated that he does not remember that three prosecution witnesses namely Jayram, Jesing and Paresh were accompanying him or not. He has admitted that when they went to Kham village, the members of the Samiti had caught hold of bullocks of Kotaniya and from that three bullocks, one bullock was caught by his brother Bharat. He has also admitted that one bullock was with accused Jivanbhai. He has admitted that there were 15 to 20 members in the Samiti and they returned from village Kham at about 9-30 P.M. He has admitted that when they stood near the bus stand, they heard shout from the house of deceased Abhesing and they ran towards the house of Abhesing. He has also stated that he along with Sureshbhai and Bharatbhai went at the spot and deceased Abhesing was lying injured on the spot. Of course, one of the witnesses Shakuntala has stated in her deposition that all of them had returned at 5-00 P.M. We will deal with this part of controversy created by PW Shakuntala while appreciating her version as witness but the fact remains that at one point of time i.e. 9-30 P.M. three accused persons and three prosecution witnesses were at village Garda and they returned from village Kham. So, the substantial part of version of PW Muljibhai gets corroboration from the say of complainant Bharat. In cross examination, complainant - Bharat in para 7 has accepted that on the date of incident, he had gone to village Kham to attend the meeting and in the meeting other members of the village namely Ashvin, Jivan, Daru were also there. He has also further accepted the suggestion that on returning, accused Arvind, accused Jivan were with him and on returning, they had waited for a while at the bus stand of village Garda. This part of version of complainant Bharat is consistent with the version of PW Muljibhai. The oral version of PW Muljibhai ought to have been appreciated while dealing with evidence of PW Bharat by the learned Trial Judge and before accepting the say of PW Bharat, the trial Court ought to have appreciated the material contradiction between the version of these two witnesses, who are close relatives of the deceased. There is substance in the argument advanced by learned advocate Shri Brahambhatt that certain admissions made by PW Muljibhai caused injury to the back bone of the prosecution case that PW Shakuntala, complainant Bharat and Mulji were in the house of Jesing, when the group of accused persons had went to the house of Jesing because of alleged grudge in their mind with reference to incident of Deena.
7. On close scrutiny of the evidence, we have found that more than one witnesses had stated and especially Mulji has specifically accepted that on hearing the shout from the house of Abhesing, Mulji, Bharat, Suresh and accused persons had ran towards the Falia of Abhesing. If this part of version is accepted, then, it can legitimately be assumed that the act of running towards falia of Abhesing is the conduct of innocent person rather then the guilty person. So, if Harshad in company of Vinod and other unknown persons had planned to assault Abhesing and that so called plan or conspiracy would have been within the knowledge of the accused persons, then they naturally would not have started running towards falia of deceased Abhesing alongwith brother of Abhesing. It is the say of the prosecution that when accused persons had gone to village Kham or they were at the bus stand at about 9-30 P.M., other three prosecution witnesses were there. The accused persons were not having any weapon in their respective hand. When PW Mulji has accepted that accused persons were also with him and his brother and they were running towards falia of Abhesing, then their presence at the spot of incident at any prior point of time, in that very falia, is not possible. It is accepted by Muljibhai in his deposition that when he reached to the spot of the incident alongwith other persons, who had also ran with him towards falia of Abhesing, he had seen Abhesing lying in an injured condition. At this juncture, it is important to observe that it is on record and in evidence by the prosecution witness that, when Deena was out of the village with Abhesing, when both of them were away from village, there was no quarrel between two families and even when Deena was residing with Abhesing till her custody was handed over to her parents under compromise or amicable settlement between them, no incident, which can be said to be a scuffle or quarrel had occurred and even after the compromise between two families and after return of Deena to her parents, there were no disputes between these two families. It is presumed that at the time of incident, there is no enmity or dispute between the two families, otherwise, both the family members would not have went at village Kham together and even when the meeting was over, both the family members have waited for each other at the bus station and if there was any dispute between the two families, they may not go together and wait for each other at the bus stand. So, the motive, which is proved conveniently by the prosecution, is questioned before us. It is true that the motive is neither required to be pleaded specifically nor required to be strictly proved so as to prove criminal wrong. While leading the evidence on the point of motive, the prosecution is supposed to give probabilities but it should be convincing and same should be found reasonable/acceptable to the court. It is also the settled proposition of law that though the motive is not required to be pleaded or proved, but when it is specifically pleaded then prosecution is first required to establish the motive to the satisfaction of the Court. On the above set of facts available on record, the learned Trial Judge has committed error in holding that because of the incident of taking away of Deena, enticing her and handing over the custody to the parents after about one month, the incident in question has occurred. It is also submitted that deceased Abhesing might have assaulted for their own reasons. Of course this suggestion had been denied by the prosecution witnesses. However, as found from the deposition of Mulji, it is on record that Abhesing had also some dispute with Bhanga Gulab as Abhesing had some relation with daughter's of Bhanga i.e. Shakuntala and Manchha. It was also suggested that deceased Abhesing was involved in illicit cutting of trees and penalty of fine for this activity was imposed upon Abhesing. Of course, his cousin brother Mulji has shown his ignorance about the dispute between Abhesing and Arjun Malji and his illicit relation with girls of the village. The learned Trial Judge was required to consider one important contingency emerging from the facts of the case that why the accused persons would assault Abhesing after the amicable settlement and compromise between two families and that too after 15 days of the incident?. It was submitted before the learned Trial Judge that all the accused persons have been falsely implicated and it is argued by Mr. Brahambhatt that by magnifying the incident of Deena, the Investigating Agency has involved all the family members in the incident without going into the detailed investigation in the matter. The eye witness Vechan Dadu, who is residing in the vicinity of the place of incident, was the person, who had lifted the body of the injured Abhesing from village Garda to village Tham, where, he was found dead and the person at whose residence, the complainant Bharat had gone for lodging FIR at Dediyapada Police Station and he could have been interrogated properly by the Investigating Officer, but none of these three important persons have been cited as witnesses nor examined. It is on record that one of these persons is Vechan Dadu. Even as per the say of the prosecution witness, he was present when the incident had occurred. Undisputably this Vechan Dadu is neither related to the accused nor to the complainant side. This witness on proper investigation might have revealed the names of other independent persons, who were present at the spot of the incident, when deceased Abhesing was assaulted. It is established by Mr. Brahambhatt that Investigating Agency has selected short cut by involving accused persons and mediator Ashvinbhai as a party in the incident, which has taken place between two families, in respect of Deena.
8. It is also one of the submission of Mr. Brahambhatt that delay caused in filing the FIR may be viewed seriously in the present case, because it was possible looking to the strength of the male member of the family of the deceased, to take injured to the hospital for treatment and to send somebody at the nearest police station or chowki at the earliest. It is in evidence that there is a police chowki at a distance of one and half kilometer from village Garda. It is also in evidence that there is Government Hospital at village Thava and there is one hospital on the way to Thava at village Mandara. According to the prosecution case, injured Abhesing was initially put in a cloth tide with wooden zoli with hammock and he was lifted and when was being taken for treatment to the hospital, on the way, he died when they were near village Thava and therefore, dead body was kept at village Thava. Facilities of vehicle was also there in the village Garda, even then, complainant Bharat had reached Dediyapada Police Station in the next day morning at about 10-00 AM. It is in evidence that parents were intimated about the death of Abhesing sometime between 2-00 A.M. to 4-00 A.M. After receiving the said news, how many family members had reached to the village Thava, where the dead body was kept, is a question and conflicting version is emerging from the evidence of prosecution witnesses in this regard. For example, one witness has stated that mother Vejuben had not came at village Thava and the other witness has stated that mother had visited the spot of incident. These are all minor contradictions and no weightage should be given to any contradiction or story manipulated by prosecution witnesses, but the facts stated in reference to the basic case of the prosecution by the witnesses or by any single witness cannot be ignored, even if, such witness is treated as hostile witness. Undisputably, evidence of hostile witness is a part of evidence and that evidence can be looked into. Of course, in the present case, no such fact situation is there on record but when in terms certain questions were asked to complainant Bharat, he has not explained in a convincing way about the delay caused in lodging complaint. We have carefully considered the distance between village Garda and Thava and place where the dead body of the deceased was lying and Taluka and town Dediyapada, where the complaint is lodged. PW Sureshbhai Jinabhai in his examination-in-chief has stated that they had started with body of injured Abhesing with a view to go to Dediyapada Police Station and has stated that they were to go to Dediyapada Police Station. In this back ground, unexplained delay in filing FIR within reasonable time itself creates a shadow of doubt. It is rightly argued by Mr. Brahambhatt that in some case, the Apex Court has considered delay unexplained in lodging complaint as fatal to the case of the prosecution or the truthfulness of the story put forward by the prosecution. It is not necessary to cite any decision, because this proposition is an accepted proposition of law. So the delay caused in filing FIR requires to be viewed in the contest of settled legal propositions, when main, male members of the family have been implicated in a serious crime.
9. The learned Trial Judge has of course considered the recovery of weapon from the accused persons and the blood stains found on cloth of accused Harshad as relevant and important piece of evidence and has treated this evidence as an important corroborative piece of evidence while accepting the oral version of the prosecution witnesses. But on close scrutiny of the evidence, it is found that the learned Trial Judge has referred to certain impermissible part of evidence, which can not be said to be a legal evidence. None of the panch witnesses have supported the case of the prosecution and the version of police officer in reference to prove the panchnama drawn during the course of investigation can be accepted, provided the oral evidence of the Police Officer found trustworthy and is supported with some corroborative circumstances. For this purpose, we have seen oral version of Police Officer PW - 16 Shri Waghela and on plain reading of deposition of Shri Waghela, we found that he has not even cared to prove the contents of panchnama drawn by him. He has proved only the fact of drawing panchnama and obtaining signature of panchas in his presence. As per settled legal proposition, contents of all the panchnama is required to be proved. It cannot be read as evidence rather as corroborative piece of evidence. So, it is not legally possible for this court to say that weapons have been recovered from accused or they were tendered by the accused before the Investigating Officer as stated by him in his deposition. Same is the case with regard to cloth of accused Harshad. One more infirmity which we found from the evidence of the prosecution, is that the learned APP who appeared in the Trial, has not produced serological report received from the FSL. We do not know whether it was sent and/or received by the office of the Public Prosecutor. Further the report of the Chemical Analyzer is not clear as to whether blood found during the course of analysis was a 'human blood'. The presence of blood is only shown and it is not specifically mentioned that blood found was of 'human blood'. So, the exercise of sending the Muddamal to the FSL has rendered fruitless and the learned Trial Judge could have appreciated this part in light of the accepted propositions of law. It is true that prosecution witnesses and panch witnesses examined by the prosecution are mostly Aadivasi and residents of remote village of forest area of District Bharuch. So, the court should not expect the accuracy or meticulousness in the version or evidence led by such witnesses; they may commit mistake with regard to time and while giving evidence in reference to the account of the incident. But, we have seen that most of the prosecution witnesses in the present case are not illiterate persons. Even Shakuntala younger sister of the deceased Abhesing examined by the prosecution had studied upto higher secondary school, Bharat is also educated person. So, while evaluating the witnesses, their educational back ground and their other activities such as they are functioning in the Samiti, the same cannot be ignored. So, the witnesses examined by the prosecution in the present case, cannot be put in the category of persons, who require to be given some concession while appreciating their evidence. We are saying this in the back-ground of one important fact that one of the important witness - Mulji has accepted that three of accused persons were with him along with other two prosecution witnesses at about 9-30 P.M., when the incident occurred. Of course, it is argued by Mr. Desai, learned APP that group of persons, who had gone to village Thava, had disbursed at 9-30 P.M. and thereafter, at about 10-00 P.M. deceased Abhesing was assaulted. Of course there is no cogent evidence to connect the accused person and deceased Abhesing and it could have been possible for a person to go to house, take weapons and after forming assembly, and to assault on deceased Abhesing. The prosecution has attempted to prove that the incident had occurred at about 10-00 P.M. when Bharat and Suresh had already returned to the respective place and when they were chatting at the place of Jesing, accused persons came with lethal weapons but the account of events given by prosecution witnesses is similarly inconsistent, for example, the say of prosecution is that Harshad has gone to residence of Abhesing, abused him at about 6-30 P.M. at evening and has pelted stone and inflicted injury on the chest of mother of deceased Abhesing, but from the evidence it is established that father of deceased Abhesing was there in the house. This story narrated by PW Bharat in his complaint as well as in the deposition has not been accepted by Vejuben nor Vejuben has stated anything about the incident, which had occurred at 6.30 P.M. So, it can be legitimately argued that incident of 6-30 P.M. should be considered as brain child of Bharat, which is narrated by him in the police station at a belated stage in the next morning. The next contradiction is established by the Doctor, who had examined Vejuben and who had sent police yadi. The said yadi indicates that Doctor was informed by prosecution witness Vejuben that she had sustained injuries by a stone at 10-00 P.M. Now, the question would be whether Harshad has pelted stone or was holding axe, whether it was possible for him to do both the activities at a time. If the stone was pelted by Harshad at 10-00 P.M. as stated by Doctor, then though, Bharat himself is silent, Suresh and Mulji have also kept silence about this incident. Learned Judge while evaluating this part of evidence, has attempted to grant concession to the witness that she might have committed error in giving time of the incident, but the important aspect is that this concession could not have been granted by the learned Trial Judge because it is the say of Vejuben in examination-in-chief that she was never inflicted any injury by stone in the entire incident. So, in absence of cogent consisting evidence as to causing injury to Vejuben, rest of the evidence cannot have legs to stand. Of course Mr. Desai, learned APP has argued that accused are neither charged for event occurred at 6-30 P.M. and the story given by PW Bharat simply indicates the element of motive in the mind of the accused side but this submission is not found acceptable to us. When the prosecution puts up a foundation stone in the story / case before the court, then, at least that stone must remain unturteled or materially undisturbed. Ultimately, otherwise, other superstructure of the case of prosecution cannot sustain.
10. The second infirmity, which we found while dealing with the decision of the learned Trial Judge is that though none of the prosecution witnesses have stated that they were called to see the entire incident because of the presence of electric light and there was no darkness in that area when the incident has occurred but during the course of cross examination, the defence side has made an attempt to establish even there was no scope of electric light at the time of incident. Of course, this evidence is neither useful to prosecution nor to the defence side, because generally the villagers are able to identify the person if the person is at a reasonable distance. But the question is that how many persons out of the respective houses or rooms had reached at the spot, when the deceased Abhesing was assaulted as mentioned earlier. Three prosecution witnesses were not there and they might have reached after the assault. As Mulji has seen Abhesing lying injured, all the persons, who had rushed to the spot of incident must have seen something. None of the prosecution witnesses have said that any of them had seen any of the accused running or leaving the spot of incident with a particular weapon in his hand, so it is probable that the persons, who had assaulted Abhesing had left the spot some minutes or seconds prior to the arrival of the persons, who had started running from the bus stand. Shakuntala, Veju and Jesing, who were undisputably present in the respective houses can be said to be the genuine persons present at the spot of the incident or nearest to the spot of incident as the blood and body of the deceased Abhesing was found at a distance of 10 feet from 4 different respective premises namely rooms having common lobby (Galary). According to us, in light of the material contradiction and conflict with evidence of other prosecution witnesses, it would not be safe to rely on evidence of Bharat and exaggerated version of this witness is not found convincing and in this back ground, the evidence of other three witnesses namely Jesing, Shankuntala and Veju are required to be scrutinised.
Date : 24.7.2003
11. According to us, version of PW Bharat before the court is exaggerated and there are material contradictions between his evidence and the evidence of other prosecution witnesses, who have been posed as eye witnesses to the incident. His conduct at the time of incident and in subsequent hours brought on record during the course of cross examination is also found unnatural. His presence at the spot of incident, when Abhesing was assaulted, is doubtful and his failure to explain delay caused in lodging FIR with Dediyapada Police Station is inconsistent and the learned Trial Judge has erred in relying on his evidence, materially. According to us, it is not safe to place reliance on his version. In this back ground, the evidence of other four witnesses namely Suresh, Shakuntala, Jesing and Veju are required to be scrutinised.
12. PW-5 Suresh Zina, whose evidence is recorded at Ex. 21, is the cousin brother and was examined as injured witness by the prosecution. According to him, he was one of the persons, who had gone at the residence of Jesing and a person, who came out of the house on hearing the shouts of accused persons and when Abhesing was assaulted, he had seen infliction of two blows by accused Harshad i.e. first on the right side shoulder and second on the back portion of the body of the deceased person. According to him, Jivan had given stick blow on head of deceased Abhesing and Ashwin had given axe blow on the head of deceased Abhesing. At that time, he has attempted to rescue Abhesing and ultimately, he sustained injury on his left leg. He was one of the persons, who had left for Dediyapada with injured alongwith PW Bharat and PW Mulji. So, this witness had an ample opportunity to discuss or to talk about the incident occurred in his presence with complainant Bharat and Mulji. Even then, the FIR and the examination-in-chief of PW Suresh is totally silent on the role played by accused Daru and accused Vinod. The case of the prosecution against Daru and Vinod is neither supported by PW Bharat nor any important witness like Suresh. The role played by these two accused persons, which is narrated by other prosecution witnesses, creates material contradiction but as PW Suresh has been examined as an injured witness, his version obviously should have been evaluated with great caution in reference to other material on record. It is not his say that he sustained injury by any weapon used by the accused person. He says that he had fallen down, when he attempted to save Abhesing from assailants and from other blows being inflicted on him. He has submitted that he had fallen down on the heap of stones and because of that, he had sustained injuries. Fall of Suresh Zina on heap of stones during the incident has not been exactly mentioned in the FIR. Certificate of injury has not been obtained by Investigating Agency. However, the Doctor, who has performed the PM of deceased Abhesing, has produced case papers of the hospital regarding treatment given to Suresh Zina on the next day. The copy of the case paper Ex.14 reveals that injured Suresh has multiple abrasion marks in the middle of the left leg in the size of 5 X 2 inch. The Doctor has stated that when he has examined the injured, he found that the age of the injury was less than 12 hours. Ofcourse, no detailed examination was made by the Doctor on the point as to the age of injury but it is clear that he had while giving history as to the cause for sustaining the injury, not stated that during the scuffle while saving his cousin brother Abhesing, he had sustained this injury. According to him, he had fallen on the heap of stones and sustained injury at 10.00 P.M. on 11.10.1998. Undisputably, he had gone to the hospital with police yadi. Though, police yadi is not produced. It can be legitimately inferred that yadi must have been prepared sometime between 9-00 A.M. to 12.10 noon, because the Doctor has stated that he has examined the patient Suresh at about 10-00 A.M. The case of Suresh has been treated as MLC case, as he had gone to hospital with police yadi but it is not on record that FIR of the incident was recorded sometime between 10-00 A.M. and 10-30 A.M. Report prepared by Dediyapada Police Station under Section 154 indicates that the offence was disclosed before the police at about 10-15 A.M. This indicates two contingencies that (i) either recording of offence is anti-time or (ii) Doctor must have examined Suresh at any time after registration of the offence. The age of the injury mentioned (within 12 hours) is also not clear. This injury is possible on the body of the person, who is residing in forest area and had gone to village Dediyapada with the dead body on a hammock in the dark night at a distance of about 4 to 5 Kms. In the panchnama of scene of offence, the stones are not found lying near the area, where deceased Abhesing was assaulted, otherwise, this could have been mentioned in the said Panchnama Ex.33. The injury admeasuring 5 X 2 inch cannot be said to be a small injury or negligible injury unless abrasions found on the body were superfluous. PW- Veju or Jesing have not stated anything about the injury sustained by Suresh and his falling down during the assault on Abhesing on heap of stones. The conduct of this witness is also found unnatural. According to the case of prosecution, Suresh was sitting with other prosecution witnesses in the house of Jesing but he has accepted during the course of cross examination that after returning from village Kham, he had gone to his house, which is just adjacent to the house of Jesing and had taken his dinner. He has not clarified that how much time he took in finishing his dinner. He has not stated anything about the dinner taken by PW Bharat or his cousin brother Mulji. Therefore, the presence of Suresh at the house of Jesing or Bharat is also not found natural. It seems that he must have taken dinner when Abhesing was assaulted outside his house. Considering certain admissions made by this witness and the conflict with the evidence of this witness and other witnesses namely Bharat, Veju, Shakuntala and Jesing, he cannot be said to be genuine witness and accordingly, it is not safe to rely on his say.
13. As per statement of PW Suresh, FIR of the incident has been lodged at Dadiyapada Police Station and it is not clear from the evidence that from where, the statement of PW Mulji was recorded. PW Mulji was very much available at Dediyapada when the complaint was lodged. Though, according to prosecution witness, Bharat, Ramesh and Mulji had lifted the body of the deceased from the spot of the incident, even then he was found dead near village Thava, no cloths with blood stains of any of the witnesses have been seized by the Investigating Agency. The Investigating Officer has visited the place of incident and has drawn panchnama of scene of offence. So after his arrival at the village Garada, prosecution witnesses have attempted to improve the story and have named two other accused persons, namely, Daru and Vinod. Therefore only, it seems that PW Shakuntala has committed error at one point of time during her deposition with regard to weapon held by accused Daru and accused Vinod. As per the prosecution case, accused Daru was holding Dharia and Vinod was holding spear but PW Shakuntala in her Chief-examination has deposed that Vinod was holding Dharia and Daru was holding spear. Ofcourse, nature of injuries found on the body of the deceased Abhesing indicate that he was given blows with a deadly weapon, which must have enough length, otherwise, injury in the length of about 22 cms. could not have been inflicted on right shoulder. But none of the witnesses have attributed Dharia blow on that part of the body to accused Daru. As discussed earlier, Daru was one of the persons, who had gone to village Kham and he was never named in FIR. It is rightly argued that looking to the size of the injury and depth of injury No. 1, weapon used for causing such injury normally would be found with blood. No legal proposition is required qua presence of blood on the muddamal Dharia recovered from the accused Daru. The said muddamal Dharia was not sent for analysis to FSL. If the injury No. 1 is viewed with some care and in the context of the evidence of the Doctor, injury No. 1 is in reality an accumulation of two different injuries and it can be established that injury No. 1 might have been inflicted with weapon, which has some projection on the outer side as is normally found in design but the injury No. 1 has been attributed to accused Harshad practically by all witnesses including Shakuntala, Jesing and Veju, whose presence at the spot of incident was found more natural and it was presumed that he has used axe. The injury found on the head of deceased Abhesing has not been explained by any of the witnesses, including Jesing, Veju and Shakuntala. The prosecution has also not attempted to resolve the inconsistency noticed between the injury seen by the panchas, who had while drawing inquest panchnama noticed injuries, and the injuries noticed by the Doctor while performing postmortem. As observed earlier, when the presence of 3 important prosecution witnesses at the spot of the incident when Abhesing was assaulted is found doubtful, the Trial Court ought not to have held the accused persons guilty. Character and conduct of one person namely, Manchha Oliya has been projected by the defence counsel while making suggestions to the prosecution witnesses. There are certain admissions of PW Jesing qua relation between Manchha Olia and deceased Abhesing and on the other hand, PW Shakuntala has tried to put curtain on the said relationship. Evidence of Shakuntala is materially in conflict with evidence of her father PW Jesing. Conduct of Shakuntala is also not found natural. PW Shakuntala in her cross examination has attempted to create an impression that they returned from village Kham with Bharat, Suresh and Mulji and after washing their hands etc. they have taken dinner and they had taken half hour in finishing their dinner. This evidence is in direct conflict with the say of Suresh. In the same way, the version regarding injury sustained by Veju at 6-00 P.M. told by Shakuntala is not found matching with version of Vejuben or Jesing, her mother and father. At one point, PW Shakuntala has stated that Vinod had inflicted blow with spear on the right buttock of his brother deceased Abhesing and this version is not corroborated by medical evidence, because, the Doctor, who has performed PM has not found any injury on right buttock of deceased. It is not necessary to give details of each blow inflicted on the deceased or it is not even necessary to state the part of the body where the blow landed but when a witness is specific qua the use of particular type of weapon and number of blows inflicted with details, then it becomes obligatory on the part of the prosecution that this version is corroborated by some evidence and especially either by injury certificate or by PM note and/or inquest panchnama. So the absence of injury on right buttock weakens the case against accused Vinod. Firstly, he has not been attributed any specific role by the complainant in the FIR or by PW Suresh. PW Shakuntala is found not consistent regarding the nature of weapon held by Vinod and further inconsistency is found in her oral version with medical evidence and she has attempted to throw curtain over the relationship of his brother Abhesing with Manchha, which is not warranted at all, if Manchha is a straight forward man, having no criminal back ground. So, it is difficult for the Court to accept the version of Shakuntala as a trustworthy, reliable witness and her version can not be accepted as a credible piece of evidence, more particularly when she is the real sister of deceased Abhesing.
14. In the cross-examination, Shakuntala has stated that her father Jesing was sleeping in the back side of the house. According to her, her father has not seen the incident. If the version of PW Vejuben and Jesing are appreciated, then the same is contrary to the story put forward by Shakuntala and the learned Trial Judge ought not to have placed reliance on any of these two witnesses. The conduct of both these witnesses are found unnatural. Even according to PW Jesing Ex. 30, he had seen part of the incident. This witness has stated that some independent witnesses / persons have also seen the incident in question. While describing the incident, he has suggested that accused No. 2 Daru had swung Dharia held by him but he was not clear where the blow is given by that Dharia to deceased Abhesing. This witness has fairly accepted that one Jemal Vasava had lodged the complaint against deceased Abhesing and after the incident of Deena, accused Ashwin had acted as mediator and ultimately, the dispute was settled and according to him, as Ashwin was active in the talks of settlement, he had developed belief that he was the man of Jivan Talsi father of Deena and Daru Talsi - uncle of Deena. Version of these witnesses namely Jesing and Vejuben have not been found trustworthy. We agree that false-in-uno is false in omini, which is not applicable in our courts, but attempt to suppress small thing or modulate the effect as per the convenience of the prosecution, create doubt as to the credibility of that particular witness. When both these witnesses have been asked that after receiving message of death of Abhesing, how many persons had gone to village Thava, where the dead body of deceased Abhesing was lying, they have not told the correct facts and they attempted to prove the presence of their son and nephew at the house, at the time when the incident occurred, which is found to be contrary to the version of Mulji. Their attempt to suppress the fact of disconnection of electricity in their house, was not at all warranted but totality and effect of such conduct of witnesses obviously prevent this court to accept the same as gospel truth. Investigating Officer Mr. Waghela has fairly accepted during the course of examination that even as per the papers of investigation, PW Mangiben is not an eye witness, even though, she has posed herself to be an eye-witness to the incident. Presence of Mangiben at the spot of incident as stated by the other prosecution witnesses, obviously would affect the credibility of a particular witness, as neither Jesing nor Veju have given accounts of injuries found on their son.
15. It is on record that including Vechan Dadu, many independent persons, who had seen the incident of assault on Abhesing, have been examined and as mentioned earlier, they have not been cited as witnesses. We are told by Mr. Brahambhatt that copies of the statements of persons, who had lifted body of injured Abhesing upto village Thava, were not supplied to the accused and from the Challen filed under Section 173 of the Criminal Procedure Code, we have also not found these persons cited as witnesses, shown in the relevant column. The cloth, which was tide up with hammock, is also not recovered and Dharia and other two weapons were not sent for FSL examination. So, it was not safe even for the trial Court to link the accused with crime. On the contrary, it was necessary for the trial Court to observe that evidence led by the prosecution is neither convincing nor sufficient to link accused with crime. While appreciating the evidence led by the prosecution, the learned Trial Judge has not considered many important accepted principles of law with regard to appreciation of evidence in reference to Sections 3 and 9 of the Indian Evidence Act.
16. We have mentioned the errors committed by the learned Trial Judge in appreciating the evidence while appreciating the documentary as well as oral evidence led by the prosecution, such as referring the unproved contents of the panchnama drawn by I.O. Shri Waghela, contents of Panchnama of scene of offence, when same has not been proved by any of the witnesses including Mr. Waghela, the same could not have been considered as substantive piece of evidence or the same could not be looked into as corroborative evidence in support of the eye witnesses examined. In the same way, the modulated version of PW Suresh qua his presence at the spot of incident, his visit at village Tham to attend Van Samiti meeting and the absence of animosity between deceased Abhesing and family members of accused No. 1 - Jivan stated by this witness i.e. Suresh, have not been dealt with in correct perspective.
17. We have carefully considered the element of falsity pleaded before the trial Court in the back-ground of other probabilities emerging from the very evidence. When element of false implication, if is emerging, the delay in filing complaint becomes considerably important. In absence of serological report from the FSL as to the group of blood of deceased Abhesing and the fact that three important weapons were not sent for FSL examination, affects the case of the prosecution adversely. When defence side has argued that presence of 3 out of 5 witnesses at the spot of incident is doubtful, then, error committed by the Investigating Officer gives strength to the other probabilities put forward by the defence. It is true that person, who has been charged for the offences punishable under Section 149 read with 302 of I.P.C., can be convicted even in absence of special charge of the offence punishable under Section 34 read with Section 302 of the IPC, but the circumstance that accused Harshad and Vinod were present in the village itself, the same would not give rise to the presumption that these two accused may have committed the offence. In absence of special charge and nature of evidence led by the prosecution, it is not even possible to hold any individual responsibility for the fatal blow inflicted on Abhesing. Though, we are not in agreement with the submission of Mr. Brahambhatt that investigation is very much unfair in the present case, however, we find that the Investigating Officer has proceeded with the investigation in a very casual manner and there is element of absence of meticulousness. Even after disclosing the names of two other accused persons at such a belated stage of investigation, Investigating Officer has not cared to record further statements of either Bharat or Suresh. The muddamal articles as discussed earlier, have not been seized or sent for analysis to the FSL. If really, the family members of the deceased Abhesing would have seen the incident and the assault made by all the accused persons and cause of motive pleaded by the prosecution, then the evidence of related witnesses would have been consistent and none of them would have committed error in stating the events chronologically.
18. Mr. A.J. Desai, learned APP has placed reliance on certain decisions and according to him, the learned Trial Judge has rightly appreciated the evidence of close relatives and as prosecution witnesses are Adivasis, residing in the remote village, the error committed by them in unfolding the story or the conflict in their say, have been rightly ignored by the learned Trial Judge. On the contrary, according to Mr. Desai, their narration of the incident is more natural. Merely because, eye-witnesses examined by the prosecution are relatives of deceased Abhesing, no corroboration is must. He has placed reliance on the decision of Apex Court, in case of Mangal Singh and Ors. v. State of Madhya Bharat reported in AIR 1957, SC p.199. Looking to the facts of the cited case, according to us, the said ratio would not help the prosecution. Mr. Desai, has also placed reliance in the case of Appabhai and Anr. v. State of Gujarat, reported in 1988 SC p.696. This decision propounded the ratio that :- (i) contradiction in the evidence of a witness by itself is not a ground to reject his entire evidence and (ii) the case of prosecution cannot be thrown out on the sole ground that it has failed in examining the independent witness. Considering the facts of that case and the case on hand, the ratio of the said decision is not applicable to the present case. In the cited case, the Court has dealt with contradiction in the evidence of victim of assault. This witness was found by the Apex Court, a best eye-witness to the incident. So the Apex Court observed that Court must not attach undue importance to minor discrepancies in evaluating such injured witness, where victims were assaulted because of animosity emerged between them on account of Panchayat election. The Apex Court has found that Investigating Agency was handicapped in getting the evidence of independent witness. Hence, this decision would not help the prosecution in the present case. In case of Satpal v. State of Punjab, reported in 1995 SCC (Cri) 1039, the incident had occurred at 10-30 P.M. in a village. The State of Punjab was under terror because of prevailing situation in the City at that particular time and there was no evidence on record to show that any one from nearby house or area had witnessed the event. Therefore, the Apex Court has held that no adverse presumption can be drawn for non examination of the witnesses. In the present case, the independent witnesses have been named and one of them is residing at a distance of 10-15 feet from the place of incident, namely, Vechandadu and this witness was one of the persons, who have visited village Kham along with prosecution witnesses and accused persons. So, legitimately, non examination of Vechandadu and other persons or the act of not citing them as a witness by the Investigating Agency affects adversely to the case of the prosecution.
19. It is true that non-examination of independent witness or dropping of such witnesses by itself would not affect the credibility of the witnesses, who are examined. Therefore, the testimony of related witnesses should be subjected to close scrutiny. According to us, if the evidence of eye-witness is not found trustworthy, then, non examination of important witness or failure to examine independent witness gets considerable importance.
20. When it is satisfactorily brought on record that the prosecution has attempted to implicate two out of five accused persons subsequently, then, it becomes more necessary for the court to scrutinise the evidence with more than the ordinary care. The testimony in such cases must be found to be consistent, trustworthy and free from infirmities or any material ambiguity. Till then, it is not safe to place reliance. We agree that minor contradictions or inconsistencies are immaterial. A person, merely because he is the villager or Aadivasi by itself, would not be sufficient to attract leniency in giving credit marks. It should be proved that witnesses examined are rustic and illiterate villagers, otherwise, the totality of the contradiction and inconsistency created by such witnesses, cannot be ignored in evaluating their trustworthiness or the loyalty to the court. As discussed earlier, the prosecution witnesses including Shakuntala has studied upto secondary High School and PW Bharat - the complainant also had admittedly studied upto 10th standard. Presence of prosecution witnesses namely Bharat, Suresh and Mulji at the spot of incident when Abhesing was inflicted blow, was under the great shadow of doubt, their relation with deceased Abhesing, dark hours of 10-00 P.M. in village and other inconsistency in their evidence, are sufficient to treat these witnesses as not trustworthy. The presence of Vejuben and Shakuntala at the spot is not doubted as their residence is at distance of 10 to 15 feet from the place where the body of deceased Abhesing was lying, where he had fallen down after assault, but their conduct and contradictions found in their evidence and their attempt to implicate some accused in the offence and attempt to suppress some facts qua character and conduct of deceased Abhesing, Manchha Olia and inconsistency in the evidence on the fact that immediately prior to the incident, Abhesing was at home and was sleeping after finishing his dinner, create doubt on credibility of these three witnesses also. So, according to us, this case cannot be put in a category of the case, wherein, trial Court could have convicted the accused or any of them on the evidence led by the closely related witnesses. Accordingly, reliance placed by Mr. Desai on the case of Shivnathsing and Ors. v. State of U.P. (94) 2 SCC p.563 and case of Malkhansing and Ors. v. State of U.P. AIR 1994 SC p.1443 would not help the prosecution case.
Date : 29.7.2003
21. Mr. Desai has also placed reliance on the case of Tarjindersing v. State of Harayana, AIR 1994, SC p.503. According to him the presence of witness at the spot was not in dispute and these witnesses were able to give accounts of injury inflicted on the deceased and they were supported by medical evidence. Here in the present case, three witnesses have failed to sort out all these grounds, because, it is on record that one of the witnesses has stated that Jesing was sleeping on the back portion of the house and his evidence is not in conformity with the medical evidence, and, therefore, according to us the judgement of the learned Trial Judge is not found sustainable and therefore, the conviction shall have to be set aside.
22. We are not inclined to accept the submission of Mr. Brahambhatt that the appellants should be awarded compensation, as they are found to be implicated falsely in the present case by the complainant as well as by the Investigating officer. According to Mr. Brahambhatt, the Investigating Officer is more responsible person, as he has conducted the investigation in casual manner and accepted the say of complainant Bharat as gospel truth. According to us, the conviction, which has been recorded by the learned Trial Judge, is required to be quashed and set aside on the ground of inadequacy of legal, cogent and convincing evidence and the other probabilities emerging automatically from the evidence on record, which has not been properly considered by the learned Trial Judge. We have not concluded that accused persons have been falsely implicated maliciously, only with a view to settle their personal score and therefore, no such order of compensation is passed by this court.
23. Before parting with the judgement, we observe qua the manner in which the trial against present accused persons is conducted by the different Presiding Officers of the Sessions Court, Camping at Rajpipla of District Bharuch, which needs to be deprecated. It transpires as under:-
[A](i) Charge against the present appellants was framed on 20th August, 1996 by Presiding Officer A;
(ii) Two witnesses namely Dr. Ashokkumar Gupta and complainant Bharatbhai were examined on 23.10.1996 by Presiding Officer - B;
(iii) Two witnesses were examined by Presiding Officer on 21.11.1996 by Presiding Officer A i.e. the judge, who had framed the charge;
(iv) Four witnesses namely PW -6,7, 8 and 9 were examined by Presiding Officer - B on 16.1.1997;
(v) PW-10 was examined by Presiding Officer - C on 10.3.1997;
(vi) PW-11 was examined by Presiding Officer D on 9.4.1997;
(vii) PW-12 was examined by Presiding Officer - D on 14.5.1997;
(viii) PW-13 was examined by Presiding Officer - E on 23.5.1997, who had delivered the judgement and convicted the accused on 13.2.1998;
(ix) PW-14 was examined by Presiding Officer C on 17.7.1997;
(x) PW-15 was examined by Presiding Judge F on 19.8.1997;
(xi) PW-16 is examined by Presiding Officer - C on 14.10.1997, whereby, he exhibited the complaint tendered in evidence vide mark 11/I at Ex.44;
(xii) Statement of accused have been recorded by Presiding Officer - E, who has delivered the Judgement;
(xiii) Defence witnesses have been examined by Presiding Judge C on 17.12.1997;
(ivx) Judgement has been delivered on 13.2.1998 by Presiding Judge - E. On some days of hearing, though, witnesses were called, respective Presiding Judge was not able to examine those witnesses, who were kept present. As this court is not knowing the ground reality prevailing in the district and during that particular sitting, but it is also clear that case of prosecution was represented before the Court by different Public Prosecutors. This undesired contigency needs prevention, otherwise, sanctity of Sessions Trial and impact of the proceedings is deteriorated and is likely to be lost. According to us, this is an alarming situation, which needs prompt solutions.
[B] It is true that there is no statutory mandate on the Presiding Judge of the Court of Sessions that he should conduct the trial on day to day basis till its conclusion. However, when accused is facing a serious charge and is being tried by the Court of Sessions, then the trial normally should be conducted on day to day basis in reference to Section 231 of the Criminal Procedure Code. Various orders have been issued by the High Court to conduct such type of cases on day to day basis. The Judge is undoubtedly influenced to considerable extent by the manner in which the witness gives his evidence in chief and moreover, demeanour of a witness during examination-in-chief as well as during cross-examination by the defence counsel. The impression or influence left on the mind of the judge, helps the judge in assessing and evaluating the creditability of that particular witness. Facts have remained fresh in a mind of the Judge, which positively helps in discussing the evidence stated by witnesses. After going through the judgement and order under challenge, we have gathered the impression that some facts, which are not there on record, have been mentioned in the judgment and the judge who has pronounced the judgement and convicted accused, himself has not recorded material part of evidence, which has led him to take help of certain surmises and presumptions, which is not otherwise permissible. We want to clarify that piecemeal recording of evidence in the present case, has not caused any serious prejudice to the accused by itself nor such argument is advanced before us, but we apprehend that if such practise is continued that one or two witnesses have been examined by one Judge and postpone the further hearing i.e. recording of evidence to a later Judge and that too after 21 to 30 days, may prejudice either side. When the Sessions Court is Camping for some days, it may not be possible for judge to conclude the trial, if the same had began in later part of the sitting days, but then, the concerned Sessions Judge, who is supposed to depute the Additional Sessions Judge to attend the Camping Sessions Court, should put all endeavour that unless and until concerned Judge is transferred out of the District, he is able to complete the trial.
We are told that Presiding Judges, who are attending the Camping Courts, are concentrating on the cases, which can be disposed of in couple of hours or days being a case of weak evidence or hostile witnesses and therefore, they are adjourning recording of evidence in contesting matters, so that, successor, to be deputed in the subsequent month, is put under obligation to deal with the contesting matters and in subsequent month, the Camping Judge would follow the same practise. So, the trial would be pushed to the third Judge, attending Camping court on rotation basis.
[C] We have carefully considered the proceedings drawn of the trial, conducted against the accused persons and we feel that things told to us may not be untrue. We express our displeasure to the manner and method in which the present trial is concluded. The Registry is directed to send copy of the relevant part of this judgement i.e. para No. 25 to concerned Sessions Judges, under whose jurisdiction, there are camping courts to try cases committed to the court of Sessions.
24. During the course of oral submissions, Mr. Desai, learned APP has pointed out that original accused No. 2 Darubhai Talsibhai has jumped the jail custody, when he was taken for jail work, outside the jail premises. In support of this submission, he has produced the copy of the letter received by him dated 14th July, 2003 and has submitted that for this wrong, formal complaint being C.R. No. 191 of 2000, for the offence punishable under Section 224 of the I.P.C. has been lodged at Ravpura Police Station and therefore, the finding recorded by us in the present appeals shall not come in the way of that criminal complaint filed against appellant No. 2 Darubhai Talsibhai and subsequent proceedings which can be drawn at the end of investigation of the said crime.
25. In view of above discussed evidence led by the prosecution, Criminal Appeal No. 285 of 1998 is disposed of as having become redundant. Criminal Appeal No. 509 of 1998 is also disposed of as having become redundant qua appellant original accused No. 1 Jivanbhai Talsibhai Vasava and appellant original accused No. 4 - Vinodbhai Jivanbhai Vasava.
Criminal Appeal No. 195 of 1998 and Criminal Appeal No. 271 of 1998 are allowed and conviction and sentence recorded by learned Additional Sessions Judge, Bharuch on 13.2.1998 in Sessions Case No. 37 of 1996 against appellants - original accused, namely, Jivanbhai Talsibhai Vasava, Darubhai Talsibhai Vasava, Aswinbhai Bhavsingbhai Vasava, Vinodbhai Jivanbhai Vasava is hereby quashed and set aside and original accused are hereby acquitted of the offences punishable under Sections 302 read with Sections 147, 148 and 149 of the I.P.C. and they are ordered to be set at liberty forthwith, if not required to be detained in any other case.
Criminal Appeal No. 509 of 1998 qua original accused No. 3 namely Harshadbhai Jivanbhai Vasava is allowed and conviction and sentence recorded by learned Additional Sessions Judge, Bharuch on 13.2.1998 in Sessions Case No. 37 of 1996 against said appellant original accused No. 3 is hereby quashed and set aside and said accused is hereby acquitted of the offences punishable under Sections 302 read with Sections 147, 148 and 149 of the I.P.C. and he is ordered to be set at liberty forthwith, if not required to be detained in any other case.
Rest of the order of the learned trial Judge passed in Sessions Case No. 37 of 1996 is hereby maintained. #. These bunch of 4 appeals have been preferred by the appellants original accused - convict persons challenging the judgement and order of conviction and sentence recorded by learned Additional Sessions Judge, Bharuch in Sessions Case No. 37 of 1996 on 13.2.1998. The Additional Sessions Judge sitting at Rajpipla has tried the accused for the offences punishable under Sections 147. 148, 149, 302, 504 and 114 of the Indian Penal Code and under Section 35 of the Bombay Police Act. At the conclusion, the learned Additional Sessions Judge held all the accused guilty of the offences punishable under Sections 147, 148, 149 and 302 of the IPC and sentenced to suffer Rigorous Imprisonment for life, for the offence under Sections 302 read with Section 149 of the IPC. All the appellants accused also have been sentenced and ordered to undergo SI for one month for offence punishable under Sections 147 and 148 of I.P.C. for each of the offence. All the sentences are ordered to run concurrently.
#. (i) Practically, all the accused, except accused No. 3, have preferred two appeals against the very judgement and order. As found from the record, original accused Nos. 1, 2 and 5 i.e. Jivanbhai Talsibhai, Darubhai Talsibhai, Ashwin Bhavsingbhai have filed Criminal Appeal No. 195 of 1998, original accused No. 4 i.e. Vinodbhai Jivanbhai has filed Criminal Appeal No. 271 of 1998, Original accused Nos. 2 and 5 being Darubhai Talsibhai Vasava and Ashwinbhai Bhavsingbhai Vasava have filed Criminal Appeal No. 295 of 1998 and Original accused Nos. 1, 3 and 4 being Jivanbhai Talsibhai Vasava, Harshadbhai Jivanbhai Vasava and Vinodbhai Jivanbhai Vasava have filed Criminal Appeal No. 509 of 1998. So obviously the appeal filed first in time need to be treated as admitted by the Court and have been considered as appeal preferred by the concerned appellants accused against the judgement and order i.e. Criminal Appeal Nos. 195 of 1998, 271 of 1998 and 509 of 1998 and second memo of the very appellants i.e. Criminal Appeal No. 285 of 1998 and Criminal Appeal No. 509 of 1998 qua original accused No. 1 - Jivanbhai Vasava & original accused No. 4 Vinodbhai Jivanbhai Vasava have been treated as redundant. Appellant No. 3 - original accused No. 3 has preferred only one appeal with two other co-accused and that appeal is Criminal Appeal No. 509 of 1998. One of the memo of appeal has been filed by the advocate engaged by the appellants accused persons and rest of the memos have been received by the Court through jail.
2(ii) Initially, as requested by the appellants accused, the appellants were given assistance of advocate, appointed by the Court but on the day of hearing of the appeals finally, the counsel appearing for the accused Mr. K.R. Rawal and Mr. B.S. Patel have submitted that they have instructions not to appear in the matter and respective appellants of the appeal want to engage other counsel. Mr. Brahambhatt, learned advocate, thereafter has appeared for the appellants and has submitted and accepted, before us, that he has instructions to appear on behalf of all the appellants accused persons, who are in jail at present.
2(iii) On verifying the proceedings and record, it is noticed that one of the appellants namely Darubhai Talsibhai Vasava is absconding since 25.8.2000 and obviously therefore, Mr. Brahambhatt had no instructions on his behalf. Undisputably, these group of accused appellants had requested the court to provide assistance of a counsel, so that they can represent their case before the court in a proper way. This request advanced by them at the time of admission hearing of the appeal, was accepted and the appeals of the respective appellants have been admitted by the Court. Now, the court has decided to appoint Mr. Brahambhatt to present the case of absconding accused in place of advocate Shri B.S. Patel, initially appointed by the Court.Mr. Brahambhatt has readily accepted to argue on behalf of all the appellants accused and therefore, we have heard Mr. Brahambhatt for all the appellants, in these appeals.
#.(i) Generally, we would not have asked Mr. Brahambhatt to argue the case of an absconding accused but as the other co-accused persons are in jail since their arrest in respect of the crime registered against them and all the accused persons had earlier engaged one counsel to defend them during the trial, we have appointed Mr. Brahambhatt to argue the case of absconding accused Darubhai and he has accepted the assignment. Mr. Brahambhatt has clarified that there is no conflict of interest between the accused. We record our satisfaction on this point.
3(ii) The State Government has not filed any appeal against the acquittal recorded by learned Additional Sessions Judge for the offences punishable under Sections 405, 504, 114 of the IPC and offence under Section 135 of the Bombay Police Act.
26. Mr. Brahambhatt, learned advocate for the appellants has taken us through the charge framed by learned Additional Sessions Judge at Ex. 5 and as per the charge, all the accused were asked to face trial, mainly for the offence punishable under Sections 147, 148, 149, 302,504 and 114 of the Indian Penal Code, being members of an unlawful assembly, using filthy language and deadly weapons. No specific independent charge was framed against any of the accused for their alleged individual wrong.
27. The case of the prosecution in brief is that on 11.10.1995 at about 6.30 P.M. one of the accused appellant Harshad Jivan Vasava had gone to the house of the complainant and had pelted stones and inflicted injuries on the chest of mother of deceased Abhesing and prosecution witness Bharat and thereafter, at about 10.00 P.M. on the same day, all the accused persons, forming an unlawful assembly, went at the residential house of prosecution witness Jesing and deceased Abhesinh Jesing with, deadly weapons like Axe, Dharia, stick etc. and as they were abusing PWs and using filthy language, deceased Abhesing followed by other prosecution witnesses Bharat. Suresh, Mulji, Vejuben, Shakuntala and Jesing came out of the house of Jesing as they were at the residence of PW Jesing. Because of motive attributed and deceased Abhesing was the first person to come out from the house, he was assaulted by all these accused persons and inflicted number of blows mainly on the head and chest by Dharia, Bhala and Axe etc. It is the say of the prosecution that deceased Abhesing had developed some relation with daughter of accused No. 1 - Jivanbhai Vasava namely Deenaben.It is the case of the prosecution that Deenaben was enticed and was taken away for about 15 days and both of them i.e. Deena and Abhesing stayed outside the village and even after their return, Deena was residing with Abhesing at the residence of PW Jesing. Undisputably, the deceased Abhesing was a young unmarried man of 22 years of age and was residing with his father Jesing. Abhesing was thereafter persuaded by mediators and girl Deena being minor i.e. below 18 years, it was decided to hand over the custody of minor Deena to her parents and ultimately, the custody of Deena was handed over to the parents - family namely accused persons.
5(i) It is important to mention that one of the accused namely Ashwinbhai is not the family member or in any way related to either Deena or other accused persons but he is residing in the vary village i.e. village Garda at a distance of around 200 ft. from the residence of deceased Abhesing. While appreciating the case of the prosecution as well as the submissions advanced by counsel appearing for the appellants, we will deal with this aspect hereafter but we feel it proper to mention here that it is the say of the defence counsel that this Ashwin was the person, who had persuaded Abhesing and his family members to hand over custody of Deena to parents of minor Deena. So, according to the prosecution, the motive for commission of offence is the act of enticing Deena by deceased Abhesing, which had resulted into enmity between both families or there was some dispute between two families. According to the prosecution case, accused No. 1 Jivanbhai Vasava was holding stick at relevant point of time, accused Darubhai Vasava brother of accused No. 1 was having Dharia, accused No. 3 Harshadbhai Vasava son of accused No. 1 was having Axe, accused No. 4 Vinodbhai Jivanbhai Vasava - son of accused No. 1 was having spear and accused No. 5 Ashwinbhai Bhavsingbhai Vasava was having Axe. FIR has been lodged by Bharat Jesing - brother of deceased Abhesing at Dediyapada Police Station on the next day of incident at about 10=00 AM. Neither the learned Additional Public Prosecution nor advocate appearing for the appellants have made grievance against the procedure followed by the Committal Court.
28. Counsel appearing for the appellants have taken us through the evidence, oral as well as documentary, led by the prosecution and the procedure adopted by the Investigating Agency before filing of the chargesheet. We will discuss the same at appropriate stage in the latter part of the judgement, but it is important to note at this stage that the evidence of prosecution witnesses have been recorded by five different Additional Sessions Judges on different dates, while they were holding sitting at Rajpipla and different Public Prosecutors have presented the case of the prosecution before the Court. The learned Trial Judge while holding that all the accused persons were guilty for above said offences, has placed reliance mainly on the evidence led by complainant - Bharat Jesing - PW 2 Ex. 16, PW-5 - Suresh Zinabhai, PW-10 Mulji Mansing Vasava on the medical evidence and on the opinion of FSL tendered and admitted as evidence during the course of trial. The learned Trial Judge has also relied on the evidence of prosecution witnesses namely Vejuben (Vaziben) mother of the deceased Abhesing, Jesing Nathabhai father of the deceased Abhesing, Mangiben Zinabhai - aunt of the deceased and has concluded that prosecution has successfully proved the charge against the present appellants and convicted all the accused. Practically all the above claimed witnesses have been posed as eye witnesses of the incident and therefore, their evidence have been appreciated by the learned Trial Judge in that perspective and we have also scrutinised their evidence. It is rightly argued before us that when the witnesses examined by the prosecution are in any way found interested in the case or are relatives of the deceased or victims, their evidence should be closely scrutinised. No independent witnesses have been examined by the prosecution. In response to the query raised by the Court, the counsel appearing for the appellants clearly accepted that no independent witnesses have been examined as independent witness by the complainant while filing Challen under Section 173 of the Indian Penal Code.
29. Mr. Brahambhatt, learned advocate for the appellants has submitted before us that charge framed by the trial Court is not specific and can be said to be vague and in absence of specific charge, the appellants accused have suffered serious prejudice and ultimately, same goes to the root of the case as the accused can be acquitted solely on this ground by holding that charge was not as per the scheme provided under Section 213 of the Criminal Procedure Code. The accused have suffered prejudice because of that error, which is beyond rectification and therefore, the accused should be given benefit.
30. The second point raised by Mr. Brahambhatt is that the learned Trial Judge has not appreciated the evidence of all witnesses in appropriate or legal way and in light of provisions of Section 3,6 and 9 of the Indian Evidence Act. The learned Trial Judge has mainly based his conclusion either on surmises or on conjectures and has liberally interpreted the version of the prosecution witnesses instead of scanning and evaluating the evidence strictly as the witnesses were of the category of persons, who can be said to be interested witnesses. In support of his submission, Mr. Brahambhatt has taken us through number of contradictions in the depositions of all the eye witnesses and ambiguous language used by learned Judge, whereby the learned Judge has observed that error committed by the witnesses can occur in the cases where person is not vigilant or educated or has deposed casually and therefore, such error has not been given due weightage while appreciating the say of the concerned witnesses and this has resulted into an erroneous finding and so the finding recorded by the learned Trial Judge requires to be reversed.
8(i) The third point submitted by the counsel appearing for the appellants is that there is an apparent error committed by the learned Trial Judge as the learned Trial Judge has ignored the relevant part of the evidence brought by the defence counsel on record during the course of cross examination of the witness Muljibhai. It is rightly argued that this Muljibhai was neither treated as hostile witness nor the learned Trial Judge has considered the material part of his evidence and discussed the same in the judgement. The learned Trial Judge has simply referred some part of the deposition of Mulji. As found from the cross examination of witness Mulji, he has gone to attend the meeting of Van Samiti on the unfortunate day of incident and when members of the Samiti went at village Kham, he alongwith other people of the village namely Arvind, Bhavsing, accused Jivan, accused Darubhai, Vechandadu, Chhotubhai went at village Kham and he has stated that he does not remember that three prosecution witnesses namely Jayram, Jesing and Paresh were accompanying him or not. He has admitted that when they went to Kham village, the members of the Samiti had caught hold of bullocks of Kotaniya and from that three bullocks, one bullock was caught by his brother Bharat. He has also admitted that one bullock was with accused Jivanbhai. He has admitted that there were 15 to 20 members in the Samiti and they returned from village Kham at about 9-30 P.M. He has admitted that when they stood near the bus stand, they heard shout from the house of deceased Abhesing and they ran towards the house of Abhesing. He has also stated that he along with Sureshbhai and Bharatbhai went at the spot and deceased Abhesing was lying injured on the spot. Ofcourse, one of the witnesses Shakuntala has stated in her deposition that all of them had returned at 5-00 P.M. We will deal with this part of controversy created by PW Shakuntala while appreciating her version as witness but the fact remains that at one point of time i.e. 9-30 P.M. three accused persons and three prosecution witnesses were at village Garda and they returned from village Kham. So, the substantial part of version of PW Muljibhai gets corroboration from the say of complainant Bharat. In cross examination, complainant - Bharat in para 7 has accepted that on the date of incident, he had gone to village Kham to attend the meeting and in the meeting other members of the village namely Ashvin, Jivan, Daru were also there. He has also further accepted the suggestion that on returning, accused Arvind, accused Jivan were with him and on returning, they had waited for a while at the bus stand of village Garda. This part of version of complainant Bharat is consistent with the version of PW Muljibhai. The oral version of PW Muljibhai ought to have been appreciated while dealing with evidence of PW Bharat by the learned Trial Judge and before accepting the say of PW Bharat, the trial Court ought to have appreciated the material contradiction between the version of these two witnesses, who are close relatives of the deceased. There is substance in the argument advanced by learned advocate Shri Brahambhatt that certain admissions made by PW Muljibhai caused injury to the back bone of the prosecution case that PW Shakuntala, complainant Bharat and Mulji were in the house of Jesing, when the group of accused persons had went to the house of Jesing because of alleged grudge in their mind with reference to incident of Deena.
31. On close scrutiny of the evidence, we have found that more than one witnesses had stated and especially Mulji has specifically accepted that on hearing the shout from the house of Abhesing, Mulji, Bharat, Suresh and accused persons had ran towards the Falia of Abhesing. If this part of version is accepted, then, it can legitimately be assumed that the act of running towards falia of Abhesing is the conduct of innocent person rather then the guilty person. So, if Harshad in company of Vinod and other unknown persons had planned to assault Abhesing and that so called plan or conspiracy would have been within the knowledge of the accused persons, then they naturally would not have started running towards falia of deceased Abhesing alongwith brother of Abhesing. It is the say of the prosecution that when accused persons had gone to village Kham or they were at the bus stand at about 9-30 P.M., other three prosecution witnesses were there. The accused persons were not having any weapon in their respective hand. When PW Mulji has accepted that accused persons were also with him and his brother and they were running towards falia of Abhesing, then their presence at the spot of incident at any prior point of time, in that very falia, is not possible. It is accepted by Muljibhai in his deposition that when he reached to the spot of the incident alongwith other persons, who had also ran with him towards falia of Abhesing, he had seen Abhesing lying in an injured condition. At this juncture, it is important to observe that it is on record and in evidence by the prosecution witness that, when Deena was out of the village with Abhesing, when both of them were away from village, there was no quarrel between two families and even when Deena was residing with Abhesing till her custody was handed over to her parents under compromise or amicable settlement between them, no incident, which can be said to be a scuffle or quarrel had occurred and even after the compromise between two families and after return of Deena to her parents, there were no disputes between these two families. It is presumed that at the time of incident, there is no enmity or dispute between the two families, otherwise, both the family members would not have went at village Kham together and even when the meeting was over, both the family members have waited for each other at the bus station and if there was any dispute between the two families, they may not go together and wait for each other at the bus stand. So, the motive, which is proved conveniently by the prosecution, is questioned before us. It is true that the motive is neither required to be pleaded specifically nor required to be strictly proved so as to prove criminal wrong. While leading the evidence on the point of motive, the prosecution is supposed to give probabilities but it should be convincing and same should be found reasonable/acceptable to the court. It is also the settled proposition of law that though the motive is not required to be pleaded or proved, but when it is specifically pleaded then prosecution is first required to establish the motive to the satisfaction of the Court. On the above set of facts available on record, the learned Trial Judge has committed error in holding that because of the incident of taking away of Deena, enticing her and handing over the custody to the parents after about one month, the incident in question has occurred. It is also submitted that deceased Abhesing might have assaulted for their own reasons. Ofcourse this suggestion had been denied by the prosecution witnesses. However, as found from the deposition of Mulji, it is on record that Abhesing had also some dispute with Bhanga Gulab as Abhesing had some relation with daughter's of Bhanga i.e. Shakuntala and Manchha. It was also suggested that deceased Abhesing was involved in illicit cutting of trees and penalty of fine for this activity was imposed upon Abhesing. Ofcourse, his cousin brother Mulji has shown his ignorance about the dispute between Abhesing and Arjun Malji and his illicit relation with girls of the village. The learned Trial Judge was required to consider one important contingency emerging from the facts of the case that why the accused persons would assault Abhesing after the amicable settlement and compromise between two families and that too after 15 days of the incident?. It was submitted before the learned Trial Judge that all the accused persons have been falsely implicated and it is argued by Mr. Brahambhatt that by magnifying the incident of Deena, the Investigating Agency has involved all the family members in the incident without going into the detailed investigation in the matter. The eye witness Vechan Dadu, who is residing in the vicinity of the place of incident, was the person, who had lifted the body of the injured Abhesing from village Garda to village Tham, where, he was found dead and the person at whose residence, the complainant Bharat had gone for lodging FIR at Dediyapada Police Station and he could have been interrogated properly by the Investigating Officer, but none of these three important persons have been cited as witnesses nor examined. It is on record that one of these persons is Vechan Dadu. Even as per the say of the prosecution witness, he was present when the incident had occurred. Undisputably this Vechan Dadu is neither related to the accused nor to the complainant side. This witness on proper investigation might have revealed the names of other independent persons, who were present at the spot of the incident, when deceased Abhesing was assaulted. It is established by Mr. Brahambhatt that Investigating Agency has selected short cut by involving accused persons and mediator Ashvinbhai as a party in the incident, which has taken place between two families, in respect of Deena.
32. It is also one of the submission of Mr. Brahambhatt that delay caused in filing the FIR may be viewed seriously in the present case, because it was possible looking to the strength of the male member of the family of the deceased, to take injured to the hospital for treatment and to send somebody at the nearest police station or chowki at the earliest. It is in evidence that there is a police chowki at a distance of one and half kilometer from village Garda. It is also in evidence that there is Government Hospital at village Thava and there is one hospital on the way to Thava at village Mandara. According to the prosecution case, injured Abhesing was initially put in a cloth tide with wooden zoli with hammock and he was lifted and when was being taken for treatment to the hospital, on the way, he died when they were near village Thava and therefore, dead body was kept at village Thava. Facilities of vehicle was also there in the village Garda, even then, complainant Bharat had reached Dediyapada Police Station in the next day morning at about 10-00 AM. It is in evidence that parents were intimated about the death of Abhesing sometime between 2-00 A.M. to 4-00 A.M. After receiving the said news, how many family members had reached to the village Thava, where the dead body was kept, is a question and conflicting version is emerging from the evidence of prosecution witnesses in this regard. For example, one witness has stated that mother Vejuben had not came at village Thava and the other witness has stated that mother had visited the spot of incident. These are all minor contradictions and no weightage should be given to any contradiction or story manipulated by prosecution witnesses, but the facts stated in reference to the basic case of the prosecution by the witnesses or by any single witness cannot be ignored, even if, such witness is treated as hostile witness. Undisputably, evidence of hostile witness is a part of evidence and that evidence can be looked into. Ofcourse, in the present case, no such fact situation is there on record but when in terms certain questions were asked to complainant Bharat, he has not explained in a convincing way about the delay caused in lodging complaint. We have carefully considered the distance between village Garda and Thava and place where the dead body of the deceased was lying and Taluka and town Dediyapada, where the complaint is lodged. PW Sureshbhai Jinabhai in his examination-in-chief has stated that they had started with body of injured Abhesing with a view to go to Dediyapada Police Station and has stated that they were to go to Dediyapada Police Station. In this back ground, unexplained delay in filing FIR within reasonable time itself creates a shadow of doubt. It is rightly argued by Mr. Brahambhatt that in some case, the Apex Court has considered delay unexplained in lodging complaint as fatal to the case of the prosecution or the truthfulness of the story put forward by the prosecution. It is not necessary to cite any decision, because this proposition is an accepted proposition of law. So the delay caused in filing FIR requires to be viewed in the contest of settled legal propositions, when main, male members of the family have been implicated in a serious crime.
33. The learned Trial Judge has ofcourse considered the recovery of weapon from the accused persons and the blood stains found on cloth of accused Harshad as relevant and important piece of evidence and has treated this evidence as an important corroborative piece of evidence while accepting the oral version of the prosecution witnesses. But on close scrutiny of the evidence, it is found that the learned Trial Judge has referred to certain impermissible part of evidence, which can not be said to be a legal evidence. None of the panch witnesses have supported the case of the prosecution and the version of police officer in reference to prove the panchnama drawn during the course of investigation can be accepted, provided the oral evidence of the Police Officer found trustworthy and is supported with some corroborative circumstances. For this purpose, we have seen oral version of Police Officer PW - 16 Shri Waghela and on plain reading of deposition of Shri Waghela, we found that he has not even cared to prove the contents of panchnama drawn by him. He has proved only the fact of drawing panchnama and obtaining signature of panchas in his presence. As per settled legal proposition, contents of all the panchnama is required to be proved. It cannot be read as evidence rather as corroborative piece of evidence. So, it is not legally possible for this court to say that weapons have been recovered from accused or they were tendered by the accused before the Investigating Officer as stated by him in his deposition. Same is the case with regard to cloth of accused Harshad. One more infirmity which we found from the evidence of the prosecution, is that the learned APP who appeared in the Trial, has not produced serological report received from the FSL. We do not know whether it was sent and/or received by the office of the Public Prosecutor. Further the report of the Chemical Analyzer is not clear as to whether blood found during the course of analysis was a 'human blood'. The presence of blood is only shown and it is not specifically mentioned that blood found was of 'human blood'. So, the exercise of sending the Muddamal to the FSL has rendered fruitless and the learned Trial Judge could have appreciated this part in light of the accepted propositions of law. It is true that prosecution witnesses and panch witnesses examined by the prosecution are mostly Aadivasi and residents of remote village of forest area of District Bharuch. So, the court should not expect the accuracy or meticulousness in the version or evidence led by such witnesses; they may commit mistake with regard to time and while giving evidence in reference to the account of the incident. But, we have seen that most of the prosecution witnesses in the present case are not illiterate persons. Even Shakuntala younger sister of the deceased Abhesing examined by the prosecution had studied upto higher secondary school, Bharat is also educated person. So, while evaluating the witnesses, their educational back ground and their other activities such as they are functioning in the Samiti, the same cannot be ignored. So, the witnesses examined by the prosecution in the present case, cannot be put in the category of persons, who require to be given some concession while appreciating their evidence. We are saying this in the back-ground of one important fact that one of the important witness - Mulji has accepted that three of accused persons were with him along with other two prosecution witnesses at about 9-30 P.M., when the incident occurred. Ofcourse, it is argued by Mr. Desai, learned APP that group of persons, who had gone to village Thava, had disbursed at 9-30 P.M. and thereafter, at about 10-00 P.M. deceased Abhesing was assaulted. Ofcourse there is no cogent evidence to connect the accused person and deceased Abhesing and it could have been possible for a person to go to house, take weapons and after forming assembly, and to assault on deceased Abhesing. The prosecution has attempted to prove that the incident had occurred at about 10-00 P.M. when Bharat and Suresh had already returned to the respective place and when they were chatting at the place of Jesing, accused persons came with lethal weapons but the account of events given by prosecution witnesses is similarly inconsistent, for example, the say of prosecution is that Harshad has gone to residence of Abhesing, abused him at about 6-30 P.M. at evening and has pelted stone and inflicted injury on the chest of mother of deceased Abhesing, but from the evidence it is established that father of deceased Abhesing was there in the house. This story narrated by PW Bharat in his complaint as well as in the deposition has not been accepted by Vejuben nor Vejuben has stated anything about the incident, which had occurred at 6.30 P.M. So, it can be legitimately argued that incident of 6-30 P.M. should be considered as brain child of Bharat, which is narrated by him in the police station at a belated stage in the next morning. The next contradiction is established by the Doctor, who had examined Vejuben and who had sent police yadi. The said yadi indicates that Doctor was informed by prosecution witness Vejuben that she had sustained injuries by a stone at 10-00 P.M. Now, the question would be whether Harshad has pelted stone or was holding axe, whether it was possible for him to do both the activities at a time. If the stone was pelted by Harshad at 10-00 P.M. as stated by Doctor, then though, Bharat himself is silent, Suresh and Mulji have also kept silence about this incident. Learned Judge while evaluating this part of evidence, has attempted to grant concession to the witness that she might have committed error in giving time of the incident, but the important aspect is that this concession could not have been granted by the learned Trial Judge because it is the say of Vejuben in examination-in-chief that she was never inflicted any injury by stone in the entire incident. So, in absence of cogent consisting evidence as to causing injury to Vejuben, rest of the evidence cannot have legs to stand. Ofcourse Mr. Desai, learned APP has argued that accused are neither charged for event occurred at 6-30 P.M. and the story given by PW Bharat simply indicates the element of motive in the mind of the accused side but this submission is not found acceptable to us. When the prosecution puts up a foundation stone in the story / case before the court, then, at least that stone must remain unturteled or materially undisturbed. Ultimately, otherwise, other superstructure of the case of prosecution cannot sustain.
34. The second infirmity, which we found while dealing with the decision of the learned Trial Judge is that though none of the prosecution witnesses have stated that they were called to see the entire incident because of the presence of electric light and there was no darkness in that area when the incident has occurred but during the course of cross examination, the defence side has made an attempt to establish even there was no scope of electric light at the time of incident. Ofcourse, this evidence is neither useful to prosecution nor to the defence side, because generally the villagers are able to identify the person if the person is at a reasonable distance. But the question is that how many persons out of the respective houses or rooms had reached at the spot, when the deceased Abhesing was assaulted as mentioned earlier. Three prosecution witnesses were not there and they might have reached after the assault. As Mulji has seen Abhesing lying injured, all the persons, who had rushed to the spot of incident must have seen something. None of the prosecution witnesses have said that any of them had seen any of the accused running or leaving the spot of incident with a particular weapon in his hand, so it is probable that the persons, who had assaulted Abhesing had left the spot some minutes or seconds prior to the arrival of the persons, who had started running from the bus stand. Shakuntala, Veju and Jesing, who were undisputably present in the respective houses can be said to be the genuine persons present at the spot of the incident or nearest to the spot of incident as the blood and body of the deceased Abhesing was found at a distance of 10 feet from 4 different respective premises namely rooms having common lobby (Galary). According to us, in light of the material contradiction and conflict with evidence of other prosecution witnesses, it would not be safe to rely on evidence of Bharat and exaggerated version of this witness is not found convincing and in this back ground, the evidence of other three witnesses namely Jesing, Shankuntala and Veju are required to be scrutinised.
Date : 24.7.2003
35. According to us, version of PW Bharat before the court is exaggerated and there are material contradictions between his evidence and the evidence of other prosecution witnesses, who have been posed as eye witnesses to the incident. His conduct at the time of incident and in subsequent hours brought on record during the course of cross examination is also found unnatural. His presence at the spot of incident, when Abhesing was assaulted, is doubtful and his failure to explain delay caused in lodging FIR with Dediyapada Police Station is inconsistent and the learned Trial Judge has erred in relying on his evidence, materially. According to us, it is not safe to place reliance on his version. In this back ground, the evidence of other four witnesses namely Suresh, Shakuntala, Jesing and Veju are required to be scrutinised.
36. PW-5 Suresh Zina, whose evidence is recorded at Ex. 21, is the cousin brother and was examined as injured witness by the prosecution. According to him, he was one of the persons, who had gone at the residence of Jesing and a person, who came out of the house on hearing the shouts of accused persons and when Abhesing was assaulted, he had seen infliction of two blows by accused Harshad i.e. first on the right side shoulder and second on the back portion of the body of the deceased person. According to him, Jivan had given stick blow on head of deceased Abhesing and Ashwin had given axe blow on the head of deceased Abhesing. At that time, he has attempted to rescue Abhesing and ultimately, he sustained injury on his left leg. He was one of the persons, who had left for Dediyapada with injured alongwith PW Bharat and PW Mulji. So, this witness had an ample opportunity to discuss or to talk about the incident occurred in his presence with complainant Bharat and Mulji. Even then, the FIR and the examination-in-chief of PW Suresh is totally silent on the role played by accused Daru and accused Vinod. The case of the prosecution against Daru and Vinod is neither supported by PW Bharat nor any important witness like Suresh. The role played by these two accused persons, which is narrated by other prosecution witnesses, creates material contradiction but as PW Suresh has been examined as an injured witness, his version obviously should have been evaluated with great caution in reference to other material on record. It is not his say that he sustained injury by any weapon used by the accused person. He says that he had fallen down, when he attempted to save Abhesing from assailants and from other blows being inflicted on him. He has submitted that he had fallen down on the heap of stones and because of that, he had sustained injuries. Fall of Suresh Zina on heap of stones during the incident has not been exactly mentioned in the FIR. Certificate of injury has not been obtained by Investigating Agency. However, the Doctor, who has performed the PM of deceased Abhesing, has produced case papers of the hospital regarding treatment given to Suresh Zina on the next day. The copy of the case paper Ex.14 reveals that injured Suresh has multiple abrasion marks in the middle of the left leg in the size of 5 X 2 inch. The Doctor has stated that when he has examined the injured, he found that the age of the injury was less than 12 hours. Ofcourse, no detailed examination was made by the Doctor on the point as to the age of injury but it is clear that he had while giving history as to the cause for sustaining the injury, not stated that during the scuffle while saving his cousin brother Abhesing, he had sustained this injury. According to him, he had fallen on the heap of stones and sustained injury at 10.00 P.M. on 11.10.1998. Undisputably, he had gone to the hospital with police yadi. Though, police yadi is not produced. It can be legitimately inferred that yadi must have been prepared sometime between 9-00 A.M. to 12.10 noon, because the Doctor has stated that he has examined the patient Suresh at about 10-00 A.M. The case of Suresh has been treated as MLC case, as he had gone to hospital with police yadi but it is not on record that FIR of the incident was recorded sometime between 10-00 A.M. and 10-30 A.M. Report prepared by Dediyapada Police Station under Section 154 indicates that the offence was disclosed before the police at about 10-15 A.M. This indicates two contingencies that (i) either recording of offence is anti-time or (ii) Doctor must have examined Suresh at any time after registration of the offence. The age of the injury mentioned (within 12 hours) is also not clear. This injury is possible on the body of the person, who is residing in forest area and had gone to village Dediyapada with the dead body on a hammock in the dark night at a distance of about 4 to 5 Kms. In the panchnama of scene of offence, the stones are not found lying near the area, where deceased Abhesing was assaulted, otherwise, this could have been mentioned in the said Panchnama Ex.33. The injury admeasuring 5 X 2 inch cannot be said to be a small injury or negligible injury unless abrasions found on the body were superfluous. PW- Veju or Jesing have not stated anything about the injury sustained by Suresh and his falling down during the assault on Abhesing on heap of stones. The conduct of this witness is also found unnatural. According to the case of prosecution, Suresh was sitting with other prosecution witnesses in the house of Jesing but he has accepted during the course of cross examination that after returning from village Kham, he had gone to his house, which is just adjacent to the house of Jesing and had taken his dinner. He has not clarified that how much time he took in finishing his dinner. He has not stated anything about the dinner taken by PW Bharat or his cousin brother Mulji. Therefore, the presence of Suresh at the house of Jesing or Bharat is also not found natural. It seems that he must have taken dinner when Abhesing was assaulted outside his house. Considering certain admissions made by this witness and the conflict with the evidence of this witness and other witnesses namely Bharat, Veju, Shakuntala and Jesing, he cannot be said to be genuine witness and accordingly, it is not safe to rely on his say.
37. As per statement of PW Suresh, FIR of the incident has been lodged at Dadiyapada Police Station and it is not clear from the evidence that from where, the statement of PW Mulji was recorded. PW Mulji was very much available at Dediyapada when the complaint was lodged. Though, according to prosecution witness, Bharat, Ramesh and Mulji had lifted the body of the deceased from the spot of the incident, even then he was found dead near village Thava, no cloths with blood stains of any of the witnesses have been seized by the Investigating Agency. The Investigating Officer has visited the place of incident and has drawn panchnama of scene of offence. So after his arrival at the village Garada, prosecution witnesses have attempted to improve the story and have named two other accused persons, namely, Daru and Vinod. Therefore only, it seems that PW Shakuntala has committed error at one point of time during her deposition with regard to weapon held by accused Daru and accused Vinod. As per the prosecution case, accused Daru was holding Dharia and Vinod was holding spear but PW Shakuntala in her Chief-examination has deposed that Vinod was holding Dharia and Daru was holding spear. Ofcourse, nature of injuries found on the body of the deceased Abhesing indicate that he was given blows with a deadly weapon, which must have enough length, otherwise, injury in the length of about 22 cms. could not have been inflicted on right shoulder. But none of the witnesses have attributed Dharia blow on that part of the body to accused Daru. As discussed earlier, Daru was one of the persons, who had gone to village Kham and he was never named in FIR. It is rightly argued that looking to the size of the injury and depth of injury No. 1, weapon used for causing such injury normally would be found with blood. No legal proposition is required qua presence of blood on the muddamal Dharia recovered from the accused Daru. The said muddamal Dharia was not sent for analysis to FSL. If the injury No. 1 is viewed with some care and in the context of the evidence of the Doctor, injury No. 1 is in reality an accumulation of two different injuries and it can be established that injury No. 1 might have been inflicted with weapon, which has some projection on the outer side as is normally found in design but the injury No. 1 has been attributed to accused Harshad practically by all witnesses including Shakuntala, Jesing and Veju, whose presence at the spot of incident was found more natural and it was presumed that he has used axe. The injury found on the head of deceased Abhesing has not been explained by any of the witnesses, including Jesing, Veju and Shakuntala. The prosecution has also not attempted to resolve the inconsistency noticed between the injury seen by the panchas, who had while drawing inquest panchnama noticed injuries, and the injuries noticed by the Doctor while performing postmortem. As observed earlier, when the presence of 3 important prosecution witnesses at the spot of the incident when Abhesing was assaulted is found doubtful, the Trial Court ought not to have held the accused persons guilty. Character and conduct of one person namely, Manchha Oliya has been projected by the defence counsel while making suggestions to the prosecution witnesses. There are certain admissions of PW Jesing qua relation between Manchha Olia and deceased Abhesing and on the other hand, PW Shakuntala has tried to put curtain on the said relationship. Evidence of Shakuntala is materially in conflict with evidence of her father PW Jesing. Conduct of Shakuntala is also not found natural. PW Shakuntala in her cross examination has attempted to create an impression that they returned from village Kham with Bharat, Suresh and Mulji and after washing their hands etc. they have taken dinner and they had taken half hour in finishing their dinner. This evidence is in direct conflict with the say of Suresh. In the same way, the version regarding injury sustained by Veju at 6-00 P.M. told by Shakuntala is not found matching with version of Vejuben or Jesing, her mother and father. At one point, PW Shakuntala has stated that Vinod had inflicted blow with spear on the right buttock of his brother deceased Abhesing and this version is not corroborated by medical evidence, because, the Doctor, who has performed PM has not found any injury on right buttock of deceased. It is not necessary to give details of each blow inflicted on the deceased or it is not even necessary to state the part of the body where the blow landed but when a witness is specific qua the use of particular type of weapon and number of blows inflicted with details, then it becomes obligatory on the part of the prosecution that this version is corroborated by some evidence and especially either by injury certificate or by PM note and/or inquest panchnama. So the absence of injury on right buttock weakens the case against accused Vinod. Firstly, he has not been attributed any specific role by the complainant in the FIR or by PW Suresh. PW Shakuntala is found not consistent regarding the nature of weapon held by Vinod and further inconsistency is found in her oral version with medical evidence and she has attempted to throw curtain over the relationship of his brother Abhesing with Manchha, which is not warranted at all, if Manchha is a straight forward man, having no criminal back ground. So, it is difficult for the Court to accept the version of Shakuntala as a trustworthy, reliable witness and her version can not be accepted as a credible piece of evidence, more particularly when she is the real sister of deceased Abhesing.
38. In the cross-examination, Shakuntala has stated that her father Jesing was sleeping in the back side of the house. According to her, her father has not seen the incident. If the version of PW Vejuben and Jesing are appreciated, then the same is contrary to the story put forward by Shakuntala and the learned Trial Judge ought not to have placed reliance on any of these two witnesses. The conduct of both these witnesses are found unnatural. Even according to PW Jesing Ex. 30, he had seen part of the incident. This witness has stated that some independent witnesses / persons have also seen the incident in question. While describing the incident, he has suggested that accused No. 2 Daru had swung Dharia held by him but he was not clear where the blow is given by that Dharia to deceased Abhesing. This witness has fairly accepted that one Jemal Vasava had lodged the complaint against deceased Abhesing and after the incident of Deena, accused Ashwin had acted as mediator and ultimately, the dispute was settled and according to him, as Ashwin was active in the talks of settlement, he had developed belief that he was the man of Jivan Talsi father of Deena and Daru Talsi - uncle of Deena. Version of these witnesses namely Jesing and Vejuben have not been found trustworthy. We agree that false-in-uno is false in omini, which is not applicable in our courts, but attempt to suppress small thing or modulate the effect as per the convenience of the prosecution, create doubt as to the credibility of that particular witness. When both these witnesses have been asked that after receiving message of death of Abhesing, how many persons had gone to village Thava, where the dead body of deceased Abhesing was lying, they have not told the correct facts and they attempted to prove the presence of their son and nephew at the house, at the time when the incident occurred, which is found to be contrary to the version of Mulji. Their attempt to suppress the fact of disconnection of electricity in their house, was not at all warranted but totality and effect of such conduct of witnesses obviously prevent this court to accept the same as gospel truth. Investigating Officer Mr. Waghela has fairly accepted during the course of examination that even as per the papers of investigation, PW Mangiben is not an eye witness, even though, she has posed herself to be an eye-witness to the incident. Presence of Mangiben at the spot of incident as stated by the other prosecution witnesses, obviously would affect the credibility of a particular witness, as neither Jesing nor Veju have given accounts of injuries found on their son.
39. It is on record that including Vechan Dadu, many independent persons, who had seen the incident of assault on Abhesing, have been examined and as mentioned earlier, they have not been cited as witnesses. We are told by Mr. Brahambhatt that copies of the statements of persons, who had lifted body of injured Abhesing upto village Thava, were not supplied to the accused and from the Challen filed under Section 173 of the Criminal Procedure Code, we have also not found these persons cited as witnesses, shown in the relevant column. The cloth, which was tide up with hammock, is also not recovered and Dharia and other two weapons were not sent for FSL examination. So, it was not safe even for the trial Court to link the accused with crime. On the contrary, it was necessary for the trial Court to observe that evidence led by the prosecution is neither convincing nor sufficient to link accused with crime. While appreciating the evidence led by the prosecution, the learned Trial Judge has not considered many important accepted principles of law with regard to appreciation of evidence in reference to Sections 3 and 9 of the Indian Evidence Act.
40. We have mentioned the errors committed by the learned Trial Judge in appreciating the evidence while appreciating the documentary as well as oral evidence led by the prosecution, such as referring the unproved contents of the panchnama drawn by I.O. Shri Waghela, contents of Panchnama of scene of offence, when same has not been proved by any of the witnesses including Mr. Waghela, the same could not have been considered as substantive piece of evidence or the same could not be looked into as corroborative evidence in support of the eye witnesses examined. In the same way, the modulated version of PW Suresh qua his presence at the spot of incident, his visit at village Tham to attend Van Samiti meeting and the absence of animosity between deceased Abhesing and family members of accused No. 1 - Jivan stated by this witness i.e. Suresh, have not been dealt with in correct perspective.
41. We have carefully considered the element of falsity pleaded before the trial Court in the back-ground of other probabilities emerging from the very evidence. When element of false implication, if is emerging, the delay in filing complaint becomes considerably important. In absence of serological report from the FSL as to the group of blood of deceased Abhesing and the fact that three important weapons were not sent for FSL examination, affects the case of the prosecution adversely. When defence side has argued that presence of 3 out of 5 witnesses at the spot of incident is doubtful, then, error committed by the Investigating Officer gives strength to the other probabilities put forward by the defence. It is true that person, who has been charged for the offences punishable under Section 149 read with 302 of I.P.C., can be convicted even in absence of special charge of the offence punishable under Section 34 read with Section 302 of the IPC, but the circumstance that accused Harshad and Vinod were present in the village itself, the same would not give rise to the presumption that these two accused may have committed the offence. In absence of special charge and nature of evidence led by the prosecution, it is not even possible to hold any individual responsibility for the fatal blow inflicted on Abhesing. Though, we are not in agreement with the submission of Mr.Brahambhatt that investigation is very much unfair in the present case, however, we find that the Investigating Officer has proceeded with the investigation in a very casual manner and there is element of absence of meticulousness. Even after disclosing the names of two other accused persons at such a belated stage of investigation, Investigating Officer has not cared to record further statements of either Bharat or Suresh. The muddamal articles as discussed earlier, have not been seized or sent for analysis to the FSL. If really, the family members of the deceased Abhesing would have seen the incident and the assault made by all the accused persons and cause of motive pleaded by the prosecution, then the evidence of related witnesses would have been consistent and none of them would have committed error in stating the events chronologically.
42. Mr. A.J. Desai, learned APP has placed reliance on certain decisions and according to him, the learned Trial Judge has rightly appreciated the evidence of close relatives and as prosecution witnesses are Adivasis, residing in the remote village, the error committed by them in unfolding the story or the conflict in their say, have been rightly ignored by the learned Trial Judge. On the contrary, according to Mr. Desai, their narration of the incident is more natural. Merely because, eye-witnesses examined by the prosecution are relatives of deceased Abhesing, no corroboration is must. He has placed reliance on the decision of Apex Court, in case of Mangal Singh and Ors. v. State of Madhya Bharat reported in AIR 1957, SC p.199. Looking to the facts of the cited case, according to us, the said ratio would not help the prosecution. Mr. Desai, has also placed reliance in the case of Appabhai and Anr. v. State of Gujarat, reported in 1988 SC p.696. This decision propounded the ratio that :- (i) contradiction in the evidence of a witness by itself is not a ground to reject his entire evidence and (ii) the case of prosecution cannot be thrown out on the sole ground that it has failed in examining the independent witness. Considering the facts of that case and the case on hand, the ratio of the said decision is not applicable to the present case. In the cited case, the Court has dealt with contradiction in the evidence of victim of assault. This witness was found by the Apex Court, a best eye-witness to the incident. So the Apex Court observed that Court must not attach undue importance to minor discrepancies in evaluating such injured witness, where victims were assaulted because of animosity emerged between them on account of Panchayat election. The Apex Court has found that Investigating Agency was handicapped in getting the evidence of independent witness. Hence, this decision would not help the prosecution in the present case. In case of Satpal v. State of Punjab, reported in 1995 SCC (Cri) 1039, the incident had occurred at 10-30 P.M. in a village. The State of Punjab was under terror because of prevailing situation in the City at that particular time and there was no evidence on record to show that any one from nearby house or area had witnessed the event. Therefore, the Apex Court has held that no adverse presumption can be drawn for non examination of the witnesses. In the present case, the independent witnesses have been named and one of them is residing at a distance of 10-15 feet from the place of incident, namely, Vechandadu and this witness was one of the persons, who have visited village Kham along with prosecution witnesses and accused persons. So, legitimately, non examination of Vechandadu and other persons or the act of not citing them as a witness by the Investigating Agency affects adversely to the case of the prosecution.
43. It is true that non-examination of independent witness or dropping of such witnesses by itself would not affect the credibility of the witnesses, who are examined. Therefore, the testimony of related witnesses should be subjected to close scrutiny. According to us, if the evidence of eye-witness is not found trustworthy, then, non examination of important witness or failure to examine independent witness gets considerable importance.
44. When it is satisfactorily brought on record that the prosecution has attempted to implicate two out of five accused persons subsequently, then, it becomes more necessary for the court to scrutinise the evidence with more than the ordinary care. The testimony in such cases must be found to be consistent, trustworthy and free from infirmities or any material ambiguity. Till then, it is not safe to place reliance. We agree that minor contradictions or inconsistencies are immaterial. A person, merely because he is the villager or Aadivasi by itself, would not be sufficient to attract leniency in giving credit marks. It should be proved that witnesses examined are rustic and illiterate villagers, otherwise, the totality of the contradiction and inconsistency created by such witnesses, cannot be ignored in evaluating their trustworthiness or the loyalty to the court. As discussed earlier, the prosecution witnesses including Shakuntala has studied upto secondary High School and PW Bharat - the complainant also had admittedly studied upto 10th standard. Presence of prosecution witnesses namely Bharat, Suresh and Mulji at the spot of incident when Abhesing was inflicted blow, was under the great shadow of doubt, their relation with deceased Abhesing, dark hours of 10-00 P.M. in village and other inconsistency in their evidence, are sufficient to treat these witnesses as not trustworthy. The presence of Vejuben and Shakuntala at the spot is not doubted as their residence is at distance of 10 to 15 feet from the place where the body of deceased Abhesing was lying, where he had fallen down after assault, but their conduct and contradictions found in their evidence and their attempt to implicate some accused in the offence and attempt to suppress some facts qua character and conduct of deceased Abhesing, Manchha Olia and inconsistency in the evidence on the fact that immediately prior to the incident, Abhesing was at home and was sleeping after finishing his dinner, create doubt on credibility of these three witnesses also. So, according to us, this case cannot be put in a category of the case, wherein, trial Court could have convicted the accused or any of them on the evidence led by the closely related witnesses. Accordingly, reliance placed by Mr. Desai on the case of Shivnathsing and Ors. v. State of U.P. (94) 2 SCC p.563 and case of Malkhansing and Ors. v. State of U.P. AIR 1994 SC p.1443 would not help the prosecution case.
Date : 29.7.2003
45. Mr.Desai has also placed reliance on the case of Tarjindersing v. State of Harayana, AIR 1994, SC p.503. According to him the presence of witness at the spot was not in dispute and these witnesses were able to give accounts of injury inflicted on the deceased and they were supported by medical evidence. Here in the present case, three witnesses have failed to sort out all these grounds, because, it is on record that one of the witnesses has stated that Jesing was sleeping on the back portion of the house and his evidence is not in conformity with the medical evidence, and, therefore, according to us the judgement of the learned Trial Judge is not found sustainable and therefore, the conviction shall have to be set aside.
46. We are not inclined to accept the submission of Mr. Brahambhatt that the appellants should be awarded compensation, as they are found to be implicated falsely in the present case by the complainant as well as by the Investigating officer. According to Mr. Brahambhatt, the Investigating Officer is more responsible person, as he has conducted the investigation in casual manner and accepted the say of complainant Bharat as gospel truth. According to us, the conviction, which has been recorded by the learned Trial Judge, is required to be quashed and set aside on the ground of inadequacy of legal, cogent and convincing evidence and the other probabilities emerging automatically from the evidence on record, which has not been properly considered by the learned Trial Judge. We have not concluded that accused persons have been falsely implicated maliciously, only with a view to settle their personal score and therefore, no such order of compensation is passed by this court.
47. Before parting with the judgement, we observe qua the manner in which the trial against present accused persons is conducted by the different Presiding Officers of the Sessions Court, Camping at Rajpipla of District Bharuch, which needs to be deprecated. It transpires as under:-
[A](i) Charge against the present appellants was framed on 20th August, 1996 by Presiding Officer A;
(ii) Two witnesses namely Dr. Ashokkumar Gupta and complainant Bharatbhai were examined on 23.10.1996 by Presiding Officer - B;
(iii) Two witnesses were examined by Presiding Officer on 21.11.1996 by Presiding Officer A i.e. the judge, who had framed the charge;
(iv) Four witnesses namely PW -6,7, 8 and 9 were examined by Presiding Officer - B on 16.1.1997;
(v) PW-10 was examined by Presiding Officer - C on 10.3.1997;
(vi) PW-11 was examined by Presiding Officer D on 9.4.1997;
(vii) PW-12 was examined by Presiding Officer - D on 14.5.1997;
(viii) PW-13 was examined by Presiding Officer - E on 23.5.1997, who had delivered the judgement and convicted the accused on 13.2.1998;
(ix) PW-14 was examined by Presiding Officer C on 17.7.1997;
(x) PW-15 was examined by Presiding Judge F on 19.8.1997;
(xi) PW-16 is examined by Presiding Officer - C on 14.10.1997, whereby, he exhibited the complaint tendered in evidence vide mark 11/I at Ex.44;
(xii) Statement of accused have been recorded by Presiding Officer - E, who has delivered the Judgement;
(xiii) Defence witnesses have been examined by Presiding Judge C on 17.12.1997;
(ivx) Judgement has been delivered on 13.2.1998 by Presiding Judge - E. On some days of hearing, though, witnesses were called, respective Presiding Judge was not able to examine those witnesses, who were kept present. As this court is not knowing the ground reality prevailing in the district and during that particular sitting, but it is also clear that case of prosecution was represented before the Court by different Public Prosecutors. This undesired contigency needs prevention, otherwise, sanctity of Sessions Trial and impact of the proceedings is deteriorated and is likely to be lost. According to us, this is an alarming situation, which needs prompt solutions.
[B] It is true that there is no statutory mandate on the Presiding Judge of the Court of Sessions that he should conduct the trial on day to day basis till its conclusion. However, when accused is facing a serious charge and is being tried by the Court of Sessions, then the trial normally should be conducted on day to day basis in reference to Section 231 of the Criminal Procedure Code. Various orders have been issued by the High Court to conduct such type of cases on day to day basis. The Judge is undoubtedly influenced to considerable extent by the manner in which the witness gives his evidence in chief and moreover, demeanour of a witness during examination-in-chief as well as during cross-examination by the defence counsel. The impression or influence left on the mind of the judge, helps the judge in assessing and evaluating the creditability of that particular witness. Facts have remained fresh in a mind of the Judge, which positively helps in discussing the evidence stated by witnesses. After going through the judgement and order under challenge, we have gathered the impression that some facts, which are not there on record, have been mentioned in the judgment and the judge who has pronounced the judgement and convicted accused, himself has not recorded material part of evidence, which has led him to take help of certain surmises and presumptions, which is not otherwise permissible. We want to clarify that piecemeal recording of evidence in the present case, has not caused any serious prejudice to the accused by itself nor such argument is advanced before us, but we apprehend that if such practise is continued that one or two witnesses have been examined by one Judge and postpone the further hearing i.e. recording of evidence to a later Judge and that too after 21 to 30 days, may prejudice either side. When the Sessions Court is Camping for some days, it may not be possible for judge to conclude the trial, if the same had began in later part of the sitting days, but then, the concerned Sessions Judge, who is supposed to depute the Additional Sessions Judge to attend the Camping Sessions Court, should put all endeavour that unless and until concerned Judge is transferred out of the District, he is able to complete the trial.
We are told that Presiding Judges, who are attending the Camping Courts, are concentrating on the cases, which can be disposed of in couple of hours or days being a case of weak evidence or hostile witnesses and therefore, they are adjourning recording of evidence in contesting matters, so that, successor, to be deputed in the subsequent month, is put under obligation to deal with the contesting matters and in subsequent month, the Camping Judge would follow the same practise. So, the trial would be pushed to the third Judge, attending Camping court on rotation basis.
[C] We have carefully considered the proceedings drawn of the trial, conducted against the accused persons and we feel that things told to us may not be untrue. We express our displeasure to the manner and method in which the present trial is concluded. The Registry is directed to send copy of the relevant part of this judgement i.e. para No. 25 to concerned Sessions Judges, under whose jurisdiction, there are camping courts to try cases committed to the court of Sessions.
48. During the course of oral submissions, Mr. Desai, learned APP has pointed out that original accused No. 2 Darubhai Talsibhai has jumped the jail custody, when he was taken for jail work, outside the jail premises. In support of this submission, he has produced the copy of the letter received by him dated 14th July, 2003 and has submitted that for this wrong, formal complaint being C.R. No. 191 of 2000, for the offence punishable under Section 224 of the I.P.C. has been lodged at Ravpura Police Station and therefore, the finding recorded by us in the present appeals shall not come in the way of that criminal complaint filed against appellant No. 2 Darubhai Talsibhai and subsequent proceedings which can be drawn at the end of investigation of the said crime.
49. In view of above discussed evidence led by the prosecution, Criminal Appeal No. 285 of 1998 is disposed of as having become redundant. Criminal Appeal No. 509 of 1998 is also disposed of as having become redundant qua appellant original accused No. 1 Jivanbhai Talsibhai Vasava and appellant original accused No. 4 - Vinodbhai Jivanbhai Vasava.
Criminal Appeal No. 195 of 1998 and Criminal Appeal No. 271 of 1998 are allowed and conviction and sentence recorded by learned Additional Sessions Judge, Bharuch on 13.2.1998 in Sessions Case No. 37 of 1996 against appellants - original accused, namely, Jivanbhai Talsibhai Vasava, Darubhai Talsibhai Vasava, Aswinbhai Bhavsingbhai Vasava, Vinodbhai Jivanbhai Vasava is hereby quashed and set aside and original accused are hereby acquitted of the offences punishable under Sections 302 read with Sections 147, 148 and 149 of the I.P.C. and they are ordered to be set at liberty forthwith, if not required to be detained in any other case.
Criminal Appeal No. 509 of 1998 qua original accused No. 3 namely Harshadbhai Jivanbhai Vasava is allowed and conviction and sentence recorded by learned Additional Sessions Judge, Bharuch on 13.2.1998 in Sessions Case No. 37 of 1996 against said appellant original accused No. 3 is hereby quashed and set aside and said accused is hereby acquitted of the offences punishable under Sections 302 read with Sections 147, 148 and 149 of the I.P.C. and he is ordered to be set at liberty forthwith, if not required to be detained in any other case.
Rest of the order of the learned trial Judge passed in Sessions Case No. 37 of 1996 is hereby maintained.