Gujarat High Court
The State Of Gujarat vs Natubhai Parsottambhai Patel & on 19 July, 2016
Author: Anant S. Dave
Bench: Anant S. Dave, B.N. Karia
R/CR.A/265/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 265 of 2006
FOR APPROVAL AND SIGNATURE :
HONOURABLE Mr. JUSTICE ANANT S. DAVE
and
HONOURABLE Mr. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
NATUBHAI PARSOTTAMBHAI PATEL &
3....Opponent(s)/Respondent(s)
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Appearance :
Mr MANISH J PATEL, ADVOCATE for the Appellant(s) No. 1
Mr RUTVIJ OZA, APP for the Appellant(s) No. 1
Mr AJAY L PANDAV, ADVOCATE for the Opponent(s)/Respondent(s) No.
1-4
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CORAM: HONOURABLE Mr. JUSTICE ANANT S. DAVE
and
HONOURABLE Mr. JUSTICE B.N. KARIA
19th July, 2016
CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N. KARIA)
Page 1 of 28
HC-NIC Page 1 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT This Appeal, preferred by the State of Gujarat under Section 378 [1] (3) of the Code of Criminal Procedure, 1973 ["CrPC" for short], seeks to challenge the judgment and order dated 7th May 2005 passed by the learned Jt. District Judge & Presiding Officer, Fast Track Court No. 8, Kheda at Nadiad in Sessions Case No. 111 of 2004, whereby, the respondents herein have been acquitted of the charge for the offence punishable under Sections 302, 323, 504, 506 (2) read with Section 34 of the Indian Penal Code.
Brief facts are stated hereunder to appreciate the rival legal contentions urged before us on behalf of the respective sides.
On 8th February 2004, as per the case of prosecution, the respondents no. 1 to 3 herein raised dispute with regard to removal of the complainant from the field, to which a complaint was also filed. It is further the case of prosecution that at night hours, father of the complainant namely Gordhanbhai Mathurbhai Patel stayed in the field and at about 8:30 pm, the complainant and his cousin brother-Shaileshbhai Bhikhabhai Patel had gone to the Page 2 of 28 HC-NIC Page 2 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT field with food and stayed there for about an hour. The complainant and his father slept there in the field throughout the night. In the wee hours of 9th February 2004 at around 7 O'Clock, the respondents nos. 1 to 4 [ie., A1 to A4] came and raised shouts by saying that today they have to finish him for a permanent peace. It is further the case of prosecution that these accused persons were armed with Dhariya and sticks. They have assaulted complainant and his father with their respective weapons and also gave foul abuses. The complainant tried to run away from the scene of offence and from behind, he saw accused-Bansibhai giving a Dhariya blow on the head of his father and the accused-Natubhai Parshottambhai Patel also gave a dhariya blow, which resulted into his father falling down on the ground. He also saw the accused persons viz., Maheshbhai Parshottambhai Patel and Kiritbhai Parsottambhai Patel inflicting stick blow on the person of his father. Therefore, the complainant raised shouts and at that time, his mother-Pushpaben and aunt- Kamlaben came there. They have also raised shouts. The accused persons thereafter flee away from the spot of Page 3 of 28 HC-NIC Page 3 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT incident in a jeep. The complainant thereafter went home and informed Parvindbhai Bhikhabhai about the incident. They along with Mathurbhai and Minaben went to Police Station to lodge a complaint, which was registered as C.R No. I-27 of 2004 by Mahemdabad Police Station.
After investigation was over, chargesheet was laid before the Court of learned Judicial Magistrate, First Class, Mahemdabad. Since the case was exclusively triable by the Court of learned Sessions Judge, it was committed to the learned Joint District Judge & Presiding Officer, Fast Track Court No. 8, Kheda at Nadiad, which numbered it as Sessions Case No. 111 of 2004.
At trial, the accused pleaded not guilty and claimed to be tried, and therefore, the prosecution examined the complainant, Medical Officer, panch witnesses and police witnesses. The prosecution also placed reliance upon documentary evidence in support of oral evidence. However, at the end of the trial, the learned trial Judge by impugned judgment and order dated 7th May 2005 was pleased to acquit the respondents herein of the charges levelled against them. Hence, being dissatisfied with the Page 4 of 28 HC-NIC Page 4 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT order of acquittal, the State is before us.
By an Order dated 31st January 2008, this Court [Coram : J.R Vora, J., as he then was & M.R Shah, J.] granted leave to appeal and thereby admitted the appeal.
Heard learned advocates appearing for the
respective sides.
Learned APP Mr. Rutvij Oza appearing for the appellant-State assailed the impugned judgment and order of acquittal by stating that the same is contrary to the law, evidence on record and against the settled principles of justice. He further urged that the learned trial Judge has not properly appreciated the oral as well as documentary evidence and thereby committed an error in acquitting the respondents herein for the offence punishable under Sections 302, 504, 506 (2) read with Section 34 of the Indian Penal Code. That, several litigations were going on with regard to ancestral property and there was a strong motive on the part of the accused persons behind the murder of father of the complainant. That, the learned trial Judge ought to have appreciated the evidence given by the prosecution witnesses who were Page 5 of 28 HC-NIC Page 5 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT eye witnesses to the offence and merely because they being close relatives of the deceased, their evidence ought not to have been discarded on this count. That the medical evidence and post mortem report was not properly considered by the learned trial Judge though it was clearly established that the cause of death was due to injury on the vital part ie., brain of the deceased. That, the trial Court ought to have considered that other injuries sustained by deceased were on various parts of the body which also clearly reveals that the blows were inflicted with full force to fulfill their motive of committing murder of the deceased. That, the evidence of PW-Ishwarlal Chauhan at Exh. 40 and Pritesh Gordhanbhai Patel at Exh. 19 is not properly appreciated by the learned trial Judge wherein this witness clearly stated that Shailesh had gone home to inform that there was a quarrel going on. That, minor omissions and contradictions in the evidence of prosecution witnesses namely Pritesh; Kamlaben and Pushpaben should not have come in the way of prosecution case discarding it completely. That, such omissions and contradictions were minor in nature, and Page 6 of 28 HC-NIC Page 6 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT therefore, much weight ought not to have been given on such things. That, the prosecution case was fully supported and corroborated by medical evidence. Learned APP further emphasized on the fact that deadly weapons like Dhariya was used with full force which itself clearly show that the intention of the accused was to cause murder of the deceased. That the evidence of eye witness Pritesh [Exh. 19]; Kamlaben [Exh. 36] and Pushpaben [Exh. 37] was not properly considered by the learned trial Judge. He has drawn attention of this Court on the map prepared by the Circle Officer, which is also produced on the record of the case and urged that when the prosecution witnesses reached the place of offence, the accused persons ran way after causing injuries to the deceased with deadly weapons. Dr. Ashish Manibhai Patel [PW-6 : Exh. 38] has fully supported the prosecution case stating that the three major injuries on the vital part of the deceased were sufficient to cause death. As per the version of PW-7 Pravinbhai Bhikhabhai Patel at Exh. 39, there exists previous dispute with regard to ancestral land property. That, panchnama of the place of offence is also Page 7 of 28 HC-NIC Page 7 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT proved through deposition of Investigating Officer as well as discovery panchnama. In support of his contentions, learned APP Mr. Rutvij Oza has placed reliance upon a decision of the Apex Court rendered in case of Waman & Ors. v. State of Maharashtra, [2011] 7 SCC 295 and urged to quash and set aside the impugned judgment and order dated 7th May 2005 passed by the learned trial Judge in Sessions Case No. 111 of 2004.
Per contra, learned advocate Mr. Ajay L. Pandav appearing for the respondents has fully extended support to the impugned judgment and order rendered by the learned trial Judge and urged that after carefully evaluating the evidence of the prosecution witnesses, the learned trial Judge has rightly acquitted the accused of the charges levelled against them. He urged that none of the witnesses examined by the prosecution were present at the time of alleged incident and all the respondents were falsely implicated in the offence alleged, perhaps due to previous rivalry pertaining to ancestral property. He added that the move behind the crime alleged was never proved by the prosecution, and therefore, inconsistencies and Page 8 of 28 HC-NIC Page 8 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT contradictions came on the record from the evidences given by the prosecution witnesses. That, Pushpaben as well as Kamlaben were never present or had reached the place of offence or they have never seen the present accused running away from the scene of offence. There was no cause for the deceased and the complainant to stay at night in the field, particularly in the Winter season without any facility. That, from the Civil Court as well as Appellate Court, it was decided that land in dispute was of the ownership of the accused, and therefore, there was no question of claiming any possession of the disputed land by the deceased and to stay in the field throughout the night. That the alleged possession of the land by the deceased falsifies the case of prosecution as it was decision of the competent Court of law. That, the conduct of the prosecution witness Pritesh was unnatural, as after causing of injuries to his father, he ran away immediately from the place of offence. He never tried to save his father. Had he been there, he would have certainly tried to save his father. That, there was no reason for PW-Shailesh to stay with the deceased on the previous night in the Page 9 of 28 HC-NIC Page 9 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT field. His presence appears to be doubtful. That, no blood stains were found on the weapons allegedly used in commission of the offence. That, as per the opinion of Dr. Ashish Manibhai Patel [PW-6 : Exh. 38] all the three injuries were caused by only one weapon. While as per the prosecution case, different weapons such as 'Dhariya' and 'Sticks' were used in commission of alleged offence. That, ocular evidence contradicts the medical evidence, and therefore also, the prosecution story becomes doubtful. That the case of prosecution can never be relied by the Court, in light of these lacunae, and therefore, the learned trial Judge has rightly acquitted the accused. Lastly, learned advocate Mr. Ajay L Pandav appearing for the respondents requested this Court to dismiss the present Appeal and thereby cancel the bail bond of the respondents herein.
Having heard learned advocate for the appellant- State as well as learned advocate for the respondents having bestowed our anxious consideration to the material placed before us, first of all, we would like to analyze the legal position.
Page 10 of 28 HC-NIC Page 10 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT In case of Sadhu Saran Singh v. State of Uttar Pradesh & Ors., reported in (2016) 4 SCC 357, the Apex Court while discussing scope of interference in appeal against acquittal order, held and observed as under :-
"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held :
"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the Page 11 of 28 HC-NIC Page 11 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT appellate court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."
Now let us examine the case of prosecution. In the instant case, prosecution has identified certain witnesses as eye-witnesses of the offence viz., Pritesh Gordhanbhai [PW-1 : Exh. 19]; Kamlaben Bhikhabhai [PW-4 : Exh. 36] and Pushpaben Gordhanbhai [PW-5 : Exh. 37]. After the incident, PW-1 Priteshbhai Gordhanbhai Patel met PW-8 Ishwarbhai Channabhai Chauhan, who is Sarpanch of Village and who was examined at Exh. 40 by the trial Court. Prosecution also examined Dr. Ashish Manibhai Patel [PW-6] as medical expert at Exh. 38. If we consider the deposition of the complainant, he has stated that his father had stayed in the field overnight alongwith him. On the next day morning at around 7:00 am, when they woke up, one Bansibhai Parshottambhai Patel alongwith Natubhai Parshottambhai Patel and Kiritbhai Parshottambhai Patel came there and started abusing his Page 12 of 28 HC-NIC Page 12 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT father. He himself and his father ran away from the field on apprehension that they would be murdered. Thereafter, the complainant saw backside and found that his father was being assaulted by Bansibhai Parshottambhai Patel with Dhariya on head, and also found Natubhai inflicting blow of Dhariya to his father. While, Mahesh and Kiritbhai were inflicting stick blow, resulting into his father falling down on the earth. In support of the prosecution case, PW- 4 Kamlaben Bhikhabhai at Exh. 32 has stated that his brother-in-law ["Diyar"] was inflicted dhariya blows by the accused persons. PW-5 Pushpaben Gordhanbhai in her deposition at Exh. 37 stated that her husband was injured on his head by the accused by inflicting blows with deadly weapons in their hands, and hence, he succumbed to such injuries. Dr. Ashish Manibhai Patel [PW-6 : Exh. 38] says that post mortem of deceased Gordhanbhai Patel was performed by him and the cause of death was due to scalp fracture, connected to internal and external injuries. Of course, as per the prosecution case due to head injuries caused to Gordharbhai, he succumbed to such injuries, which was also supported by the medical evidence. Doctor Page 13 of 28 HC-NIC Page 13 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT has also opined that with a weapon, such as 'Dhariya', the said injuries caused to the deceased was possible. As per the story of prosecution, accused no. 1 had given a blow with Dhariya, while A-3 & A-4 inflicted stick blows. Indisputably, the incident took place on 9th February 2004. As per the testimony of PW-1-Priteshbhai Gordhanbhai Patel, one Chapri was constructed on the land which came into their share. Accused Natubhai Parshottambhai Patel was staying on the land of their share. On the previous day of the incident, this witness was told to leave the field by accused Natubhai Parshottambhai Patel, Mahesh Parshottambhai Patel and Meenaben Patel. In this connection, a complainant was also given by Pravinbhai. On the very same day, at night, he went with his cousin namely Shaileshbhai with dinner. Thereafter, Shaileshbhai returned back to his home and he slept with his father in the field. In the morning of 9th February 2004 at around 7 O'Clock, when they wake up, Bansibhai, Natubhai, Mahesbhai and Kiritbhai came there and abused his father saying that today he should be finished for permanent peace. At that time, Bansibhai and Natubhai were armed Page 14 of 28 HC-NIC Page 14 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT with weapon 'Dhariya', while Mahesh and Kiritbhai were having stick in their hands. As stated earlier, Bansi gave a Dhariya blow on the head of the deceased and thereafter, Natubhai also inflicted one dhariya blow on the person of deceased-Gordhanbhai, and Maheshbhai and Kiritbhai gave stick blows, resulting into his falling down on the earth. Seeing the incident, he started shouting. At that time, his mother and aunty came with Tea. PW-4 Kamlaben Bhikhabhai in her deposition at Exh. 36 has stated that on the day of incident, she was in her house in the morning and at that time, her 'Diyar ' ie., brother-in- law Gordhanbhai and nephew-Mukesh went to the field for fetching grass. At that time, hot discussions took place between them with the accused persons. The accused assaulted her brother-in-law. She has further stated that at the time of incident, Pushpaben, who happens to be sister-in-law was going to supply Tea and she accompanied her and from a certain distance, they saw that there was a hot discussion going on with the accused and her brother-in-law. All of them were armed with weapons, such as Dhariya and sticks. The accused persons Page 15 of 28 HC-NIC Page 15 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT gave Dhariya blows and hence the deceased fell down on the land. Nephew of this witness, due to fear, ran away from the place of incident. This witness found that her Diyar had sustained serious head injuries and profusely bleeding. He was conscious then. In the meanwhile, Sarpanch of village namely Ishwarbhai Channabhai Chauhan reached the place of incident. He informed the Police on telephone about the incident. Now, if we examine testimony of PW-5 Pushpaben examined at Exh. 37, she has deposed that she and her sister-Kamlaben were going to their field to provide Tea to her husband. When they reached the filed, quarrel was going on. At that time, accused Bansibhai, Nathubhai, Kiritbhai and Mahesh were present with weapons in their hands. Bharatbhai, who is nephew of this witness as well as Priteshbhai were also present in the field. The accused gave a blow of Dhariya on the head of Gordhanbhai, resulting into his falling down on the earth and succumbing to such injuries. Then, Sarpanch of the village was called by telephone. He came there. The accused were seen by this witness from a certain distance. From the testimony of all the three eye Page 16 of 28 HC-NIC Page 16 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT witnesses, different story is made out as to how they reached at the place of offence. First of all, Pritesh Gordhanbhai states that on the previous night, he stayed with his father in the field, accompanied with Shaileshbhai. PW-Kamlaben Bhikhabhai says a different story then Priteshbhai. And therefore, presence of PW-4 Kamlaben Bhikhabhai and PW-5 Pushpaben Gordhanbhai Patel at the time of alleged offence appears to be doubtful because Pritesh has no idea as to how the one-half share of the land came in their possession. He has admitted that one-half of the share in the land was demanded from the accused persons and a Civil Suit in this regard, being Civil Suit No. 334 of 1999 was also filed. He has no idea whether interim injunction was granted or not or any appeal preferred. However, he has admitted that in an appeal, they were defeated. He had also no idea whether any land-marks were drawn dividing the land of Block No.
170. In a further statement, the accused persons have submitted one written statement at Exh. 53 in which it is declared that Civil Suit No. 334 of 1997 was filed and interim injunction was granted by the Civil Court. Appeal Page 17 of 28 HC-NIC Page 17 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT was also preferred by the other side in which one panchnama was also prepared in which there is no mention of 'Chapri' and no possession is shown of the same in the field of the complainant side. On the previous day of the incident, there was a dispute regarding the land between the two parties and cross complaints were also filed. Story of prosecution that deceased Gordhanbhai and his son Priteshbhai came to their field and stayed overnight without any facility does not inspire the confidence of the Court because there was no possession of the disputed land with the complainant side as interim injunction was granted by the Civil Court and appeal was preferred by the complainant side. A panchnama was also prepared in the court proceedings in which no chapri is shown nor any possession shown of the complainant then why deceased Gordhanbhai and Priteshbhai ie., son of the deceased would go to the filed ie., the disputed land and would stay their overnight without any facility. Moreover, deceased Gordhanbhai Patel and Pritesh were also knowing that accused were also staying in the same field, when in the normal condition a prudent man would not Page 18 of 28 HC-NIC Page 18 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT stay overnight in the same field. Under the circumstances, if we consider the depositions of PW-1 Priteshbhai Gordhanbhai; PW-4 Kamlaben Bhikhabhai and PW-5 Pushpaben Gordhanbhai at a time, all these three witnesses have given different versions contrary to each other. The Investigating Officer has also stated that in a statement made by Priteshbhai, he has stated that he has no idea that accused were sitting in a motor vehicle and this motor vehicle was of the ownership of Natu Fakirbhai. It is also admitted that in the complaint-Priteshbhai has not stated that the accused had also stayed in the field all throughout the night, and at the time of offence from where they came. PW-4 Kamlaben Bhikhabhai says that with a view to collect grass, deceased Gordhanbhai and Priteshbhai had gone to field. While PW-5 Pushpaben Gordhanbhai says that to supply Tea to the deceased- Gordhanbhai, she had gone to the field. As per the statement of PW-1 Priteshbhai, at the time of offence, he himself and his father were scared of the threats and they ran away accompanying each other and thereafter the accused had assaulted to his father by a Dhariya blow. Page 19 of 28 HC-NIC Page 19 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT Whereas,PW-4 Kamlaben and PW-5 Pushpaben in their deposition stated that when they went towards the field, quarrel was going on. Specifically, PW-4 Kamlaben says that when she reached the field, there was a hot discussion going on between the accused persons and his brother-in-law [Diyar]. Thereafter, immediately, she says that when she saw from a certain distance, all the four accused were engaged in hot discussion with her Diyar ie. Brother-in-law. Thus, all the three witnesses are trying to establish their presence at the time of offence by putting forth different versions. In fact, if there was no possession of the disputed land with the deceased-Gordhanbhai or complainant-Priteshbhai, there was no question of their staying in the field overnight. From the panchnama, nothing appears that any Dinner was taken for the deceased at the place of offence, the previous night. No Chapri was found at the place of offence in the panchnama. Therefore, the story of prosecution of supplying tea in the morning appears to be doubtful. At the time of incident, winter season was there and no prudent man would have gone to open field for overnight Page 20 of 28 HC-NIC Page 20 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT stay without any facility. PW-1 Pritesh himself admits in his cross examination that on the previous day of the incident, there was a dispute in respect of the land and cross complaints were also filed. In this dispute, both the parties had sustained minor injuries. There was no reason to accompany Shaileshbhai to visit the field in the night. Deceased Gordhanbhai and Priteshbhai had slept blow a tree "Samli " without any weapon. Here also, story of prosecution that deceased and Pritesh has slept in the open field at night without any weapon and that too knowing that opposite party was staying at a distance of 20 meters away in the same field does not appear to be true and inspiring any confidence. PW-1 Priteshbhai further states in his cross examination that two different blows were given to his father by different persons and on receiving the second blow, his father fell down in reversed position. He further states that two blows by stick were also given on his head. If we compare deposition of this witness Pritesh with the medical evidence, Dr. Ashish Manibhai Patel says that there was an incised wound over left parieto-occipital region. Other injuries are also Page 21 of 28 HC-NIC Page 21 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT described by this witness. As per the opinion of this Doctor, if a person is running and another person gives blow to the front portion in the running position, injury no. 1 could not be possible. He also states that injuries shown in column no. 17 of the post mortem note could not be possible by second person in a running position to the first person. Doctor has further opined that all the three injuries were caused with one weapon, while PW-1 Priteshbhai says that accused no. 1 & 2 had given blow of Dhariya turn by turn on the head of deceased Gordhanbhai, resulting into his falling down on receiving the second blow. While the Doctor opines of one blow was given with such a force that the person would fall down on the land. Therefore, the medical evidence contradicts with ocular evidence available on the record. The testimony of PW-4 Kamlaben Bhikabhai and PW-5 Pushpaben does not inspire confidence of the court. Their presence at the place of offence appears to be doubtful. PW-1 Pritesh returned back to home immediately after seeing the incident but he says nothing to the persons whom he met in respect of the assault by the accused persons to his Page 22 of 28 HC-NIC Page 22 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT father. He only says that there was a quarrel going on. The conduct of PW-7 Pravin Bhikhabhai Patel also appears to be doubtful and unnatural. When he came to know that Gordhanbhai had received head injuries by Dhariya, it was not taken seriously. He stated that there was a dispute going on in the filed. As per his impression and if they would come there, further quarrel would be possible, and therefore, he instructed Pritesh to call Sarpanch and other two to three persons and thereafter they went to the field. PW-12 Shaileshbhai Bhikhabhai in his deposition at Exh. 46 says that when he came to know about the incident, he immediately contacted Sarpanch Ishwarbhai Channabhai at his residence and informed him about the incident having taken place. While Sarpanch Ishwarbhai says in his testimony at Exh. 40 that when Shaileshbhai came to his residence, he was informed that there was a dispute going on with Bansibhai, Natubhai, Maheshbhai and Girishbhai. Hence, he was requested to visit the field. Thus, testimony of these witnesses clearly contradicts each other. Investigating Officer Raghubhirsinh Mahavirsinh Badhoria is examined as PW-15 at Exh. 50. In his deposition, this Page 23 of 28 HC-NIC Page 23 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT witness has stated that PW-Pravin Bhikhabhai has not stated that Natubhai and Bansibhai had caused head injuries to his father by Dhariya. If this witness has not stated any facts before the Police in his statement under Section 162 CrPC and says it before the Court for the first time on a particular point, it can never be accepted in evidence. The conduct of the prosecution witness Pravinbhai and Priteshbhai also creates a doubt on prosecution story. Panchas of recovery panchnama Exh. 44 have turned hostile, as they have not supported the prosecution story. Of course, considering the deposition of Investigating Officer and panchnama drawn under Section 27 of the Indian Evidence Act, 1881, recovery of weapon is proved by the I.O. If we consider this panchnama, on recovery of weapons, no human blood stains were found, and therefore, it also creates doubt whether in fact weapons were used in the offence or otherwise. No presumption can be drawn relying upon analysis report as well as serological report Exh. 23-31 that accused were guilty of committing murder of deceased-Gordhanbhai.
In case of Waman & Ors. v. State of Maharashtra Page 24 of 28 HC-NIC Page 24 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT [Supra], it is held that the fact of being a relative cannot by itself discredit the evidence. In the said case, the witness relied on by the prosecution was the brother of the wife of the deceased and was living with the deceased for a quite few years. The Court held that, "But that by itself is not a ground to discredit the testimony of this witness, if it is otherwise found to be consistent and true." The Court further held and observed that, "merely on the basis of minor contradictions about use and nature of weapon and injuries, their statements cannot be ignored in toto. Ordinarily, the prosecution is not obliged to explain each injury on accused, even though injuries might have been caused in the course of occurrence, if injuries are minor in nature. However, if prosecution fails to explain a grievous injury on one of the accused persons, which is established to have been caused in the course of same occurrence, then certainly court looks at prosecution case with a little suspicion,on the ground that prosecution has suppressed true version of the incident." Here, testimony of panch witnesses is not reliable or trustworthy not only because they are related to the Page 25 of 28 HC-NIC Page 25 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT deceased but the way in which they have tried to establish their presence at the place of offence by a different way does not inspire confidence of this Court to accept them as trustworthy witnesses. The conduct of the prosecution witnesses is not natural to create confidence in their version. The testimony of panch witnesses is not supported by medically witnesses. Testimony of PW-4 Kamlaben Bhikhabhai diverts the prosecution case differently because she says that deceased Gordhanbhai and Priteshbhai when went to collect grass, hot discussions took place between them and the accused persons. PW-4 Kamlaben in her cross examination has also admitted that since last twelve months, she was suffering from cataract and her vision was very weak, and therefore, to see the incident from a reasonable distance by this witness cannot be believed. As per testimony of PW-1 Pritesh, Kamlaben and Pushpaben met him on way appears to be doubtful because Kamlaben has stated that nobody had met her. As per the say of PW-5 Pushpaben, Bharatbhai was also in the field at the time of incident but this witness is not examined by the prosecution. Thus, Page 26 of 28 HC-NIC Page 26 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT considering the dispute between the parties on a previous day and the complaint lodge by both the sides, the story of prosecution that deceased Gordhanbhai and Priteshbhai slept in the field, though however, their possession was not accepted by the competent Court of law and accused namely Natubhai Parshottambhai Patel was staying in a Chapri within a distance of 20 meters in the same field, the story putforth by the prosecution cannot be believed. If the accused had an intention to cause murder of the deceased, they would not have waited till morning. Presence of panch witnesses at the time of offence also appears very doubtful. From the entire evidence, as scrutinized and recorded, the prosecution story appears to be doubtful. The witnesses are not trustworthy, their presence at the time of offence also is not established connecting the accused with the crime, and therefore, we are convinced that no interference is called for in the impugned judgment and order of acquittal.
Accordingly, we dismiss the present Appeal with no order as to costs.
(ANANT S. DAVE, J.) Page 27 of 28 HC-NIC Page 27 of 28 Created On Wed Jul 20 04:17:19 IST 2016 R/CR.A/265/2006 CAV JUDGMENT (B.N. KARIA, J.) Prakash Page 28 of 28 HC-NIC Page 28 of 28 Created On Wed Jul 20 04:17:19 IST 2016