Gujarat High Court
State Of Gujarat vs Natvarsinh N ... on 27 December, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
R/CR.A/567/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
CRIMINAL APPEAL No. 567 of 1994
With
CRIMINAL APPEAL No. 568 of 1994
FOR APPROVAL AND SIGNATURE :
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
===============================================================
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 ?
=============================================================== STATE OF GUJARAT....Appellant(s) Versus NATVARSINH N GOHIL....Opponent(s)/Respondent(s) =============================================================== Appearance :
Ms JIRGA JHAVERI, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1 HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 Mr MANRAJ A BAROT, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 ============================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Page 1 of 29 HC-NIC Page 1 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT and HONOURABLE Mr. JUSTICE B.N. KARIA 27th December 2017 CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N. KARIA) The common judgment and order dated 22nd February 1994 passed by the learned Additional Sessions Judge, Court No. 3, Ahmedabad in Sessions Case No. 85 of 1990 and Sessions Case No. 129 of 1993 acquitting the respondents-original accused in respect of the offence which came to be registered against them before Sabarmati Police Station, Ahmedabad is assailed in this pair of Appeals preferred under Section 378 of the Code of Criminal Procedure, 1973 ["CrPC"
for short].
2. Facts emerging from two different complaints are - 2.1 The present case of the prosecution relates to CR No. I-158/1989 registered with Sabarmati Police Station, Ahmedabad for an offence punishable under Sections 307, 451 and 34 of the Indian Penal Code ["IPC" for short] read with Section 135(1) of the Bombay Police Act.
Page 2 of 29 HC-NIC Page 2 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT 2.2 On 13th September 1990, a charge-sheet was filed vide Exhibit-1 against Natvarsinh Naransinh Gohil, who is accused in Sessions Case No. 85/1990, for an offence punishable under Sections 452 and 307 IPC read with Section 135 (1) of the Bombay Police Act, and accordingly, charge was framed. Thereafter, on 28th May 1993, charge was framed at Exhibit-1 against Ronald alias Raju Arnold Soloman, the second accused person in this case under Sections 452 and 307 IPC read with Sections 34 and Section 135 (1) of the Bombay Police Act. As both these charge-sheet arise out of the same offence, Sessions Case No. 129/1993 was consolidated with Sessions Case No. 85/1990 vide the order dated 5th January 1994 and an order was passed to take the evidence accordingly. 2.3 The case of prosecution is such that Lataben, wife of Harshadkumar Harilal Gajjar, resident of Ahmedabad lodged a complaint on 14th May 1989 stating that she stays with her mother Dayaben at the above mentioned place and she is studying in the Second Semester in Page 3 of 29 HC-NIC Page 3 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT Law College, Ahmedabad. Her marriage was solemnized before six years with one Mr. Harshadkumar, son of Harilal who is living in Kalol. As she is studying in Ahmedabad, for the last six months, she stays with her mother, as she is alone. They are three sisters, out of which, Varshaben, whose marriage has been solemnized before eight years with Bharatkumar, son of Navinbhai living at Mumbai. For the last one month, as there is summer vacation, her sister-Varshaben had come at the place of complainant. 2.4 Further, the case of prosecution is such that there are five tenants in the house of the complainant, out of which A1-Natvarsinh Naransinh had been given a room on rent for a period of about 10 months and monthly rent is decided as Rs. 450/-, but Natvarsinh was not paying the rent regularly and for the last seven months, he has not given the rent. In spite of asking for the rent, he is not paying the rent. Therefore, he was asked to give the rent, or else, vacate the house. Even though he was stated so, he is not vacating the house Page 4 of 29 HC-NIC Page 4 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT and he is wrongfully causing harassment to the mother of the complainant and is quarrelling with her. In this matter, tenant Natvarsinh has filed a case in a Civil Court against the mother of the complainant, which is still pending. As the father of the complainant has passed away, her mother is looking after administration of the house.
2.5 Further, the case of prosecution is that on 14th May 1989 her sister Varsha and mother Dayaben when were watching a movie "36 Ghante" on TV and as there was an interval at 07:30 pm, the complainant came to veranda [compound] for fetching water in a bucket. She saw tenant Natavarsinh and his accomplice. The complainant did not know the name of his accomplice, but she may identify on seeing him. Both the said persons were standing in veranda. The complainant asked them as to why had they arrived, and thereby as the altercation occurred, his sister Varsha rushed out from the house, however, in the meanwhile, both of them took out razor from the pocket of their pants. A-1 Page 5 of 29 HC-NIC Page 5 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT Natvarsinh inflicted blows of razor on her right side cheek. While he was inflicting another blow, as the complainant raised her hand for defence, he inflicted a razor blow on left upper arm. As his accomplice inflicted a razor blow on upper side of left eyebrow, the complainant sustained injuries and she was bleeding. When the complainant began shouting, at that time, nearby persons and her mother came, both Natavarsinh and his accomplice escaped from the spot. Thus, such is a case of the prosecution that keeping grudge against not giving house on rent and getting it vacated, they have beaten and attempted murder of the complainant, giving rise to filing of a complaint against the accused persons [respondents herein]. 2.6 Further, Darshansing Thakarsing Padhiyar who was serving as PSI at Sabarmati Police Station in Investigation Squad, sent the injured complainant for medical treatment at Civil Hospital, Ahmedabad. He recorded the complaint of Lataben as per her instructions in Civil Hospital. He called panchas, and Page 6 of 29 HC-NIC Page 6 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT drew panchnama of the scene of offence. The said place was indicated by witness Varshaben. There were dried blood spots on the scene of incident. He took samples on wet cotton gauze, affixed with them the slips containing signatures of panchas and seized the same on making the seal of Sabarmati Police Station. Thereafter, he took measurements of nearby places, and recorded the statements of lady witnesses Dayaben, Varshaben, etc. 2.7 Further, it is the prosecution case that the charge of further investigation of this case was taken over by Police Sub Inspector Shri H.A. Pathan on 14th May 1989. He recorded statements of eye witness Bharatkumar Manubhai Parikh, etc. On 15th May 1989, as the complainant Lataben produced half sleeved kurta having scattered blood spots and the cut marks on left shoulder and front portion, and one piece of bed-sheet having blood stains, the same were seized by drawing panchnama. He recorded further statement of complainant and persons present nearby the scene of Page 7 of 29 HC-NIC Page 7 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT offence. After investigation was over, Investigating Officer filed chargesheet against A1 and A2; as mentioned hereinabove.
2.8 As only the Sessions court has jurisdiction to try the offence punishable under Section 307 of IPC, learned Metropolitan Magistrate committed the case of both the accused persons to the Court of Sessions. Both the accused denied the charge leveled against them and claimed to be tried.
2.9 To prove the case against the accused persons, the prosecution adduced the following ocular as well as documentary evidences :
[1] PW-1 : Lalitaben Harshadkumar Gajjar-
Complainant [Exh.14];
[2] PW-2 : Varshaben Bharatbhai Parikh, Sister of Complainant [Exh. 16];
[3] PW-3 : Babubhai Nagjibhai Dabhi [Discovery Panch] [Exh. 17];
[4] PW-4 : Gunvantbhai Parshottambhai Patel [Discovery [Panch] [Exh. 18];Page 8 of 29
HC-NIC Page 8 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT [5] PW-5 : Bhikhabhai Chottalal Soni [Discovery Panch] Exh.19 [6] PW-6 : Govindlal Natvarlal Mehta, Executive Magistrate, Exh. 20.
[7] PW-7 : Jaswant Prabhudas Bhavsar, [Panch of Scene of Offence] [Exh. 23];
[8] PW-8 : Hussain Khan Abdulakhan Patal, PSI [Investigating Officer] Exh. 24; [9] PW-9 : Devjibhai Kanjibhai Bava, Police Inspector [Investigating Officer] [Exh. 25]; [10] PW-10 Darshansingh Thakursingh Padiyar, PSI [Investigating Officer] Exh. 26; [11] PW-11 Dr. Hasumatiben Ranchhodbhai Patel, Exh.28
3. Further statement of the accused persons came to be recorded, as per provisions of Section 313 CrPC, after a declaration by the prosecution regarding completion of the evidence. In that statement, the accused stated that a false case had been filed against them and claimed to be tried.
4. Ms. Jirga Jhaveri, learned Additional Public Page 9 of 29 HC-NIC Page 9 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT Prosecutor appearing on behalf of the appellant-State of Gujarat has made various submissions on the basis of the trial Court judgment. Her main contention is that the testimonies of the eyewitnesses Lataben Harshadkumar Gajjar and her sister-Varshaben Bharatbhai Parikh have specifically stated the number of persons present as well as the individual act committed by each of the respondent-accused in the incident, are the clinching evidence which cannot be brushed aside. She contended that recovery of weapon "razor" used in the incident cannot be overlooked, as its recovery has been clearly supported by the Investigating Officer before the Court by proving the discovery panchnama. Over and above this, learned APP contended that the medical evidence duly corroborates with the ocular evidence, thereby establishing guilt of the accused persons. That, the complainant had received three injuries by razor at the hands of accused persons. That, in a test identification parade carried out in presence of Executive Magistrate Page 10 of 29 HC-NIC Page 10 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT and other witnesses, A2 was clearly identified by the complainant herself, and hence, there was no question of non identification of respondent no. 2 and his presence at the time of incident. That, the victim herself has lodged the complaint which is supported by her sister. That, panchnama of the place of offence was clearly proved by the prosecution. That, there is no difference in respect of date, time, weapon used by the respondents-accused in the offence. That, the prosecution has clearly proved its case beyond reasonable doubt against the present respondents- accused and hence, it was urged by learned APP to quash and set-aside the impugned common judgment and order passed by the learned Addl. Sessions Judge, Ahmedabad.
5. Learned advocate Shri Manraj A Barot appearing on behalf of the respondents [original accused] made various submissions countering the arguments put forward by the appellant-State. He pointed out material alterations between the testimonies of PW-1-Lalitaben Page 11 of 29 HC-NIC Page 11 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT Harshadkumar Gajjar [Complainant at Exh.14] and PW- 2 : Varshaben Bharatbhai Parikh, [sister of the complainant at Exh. 16] to prove that either they were not material eyewitnesses, or that they have either not seen the incident or they came to the spot after the incident had occurred.
5.1 According to the learned advocate Mr. Barot, the conduct of these eyewitnesses appears to be unnatural and their silence in not making any statement to the Police Officers at the earliest, casts doubt on their testimonies. That, the witness to recovery of weapon, produced by the prosecution, have turned hostile. That, the complainant Lataben has described a different story than what she stated earlier, when she lodged the complaint. That, the original accused no.1 was a tenant of mother of the complainant and he was not paying rent of the occupied premises to the landlady regularly, and therefore, to get back the premises from A1 [respondent no.1 herein], a false story was created by the prosecution. That, there was no intention proved by Page 12 of 29 HC-NIC Page 12 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT the prosecution of committing murder of the complainant at the hands of the respondents and they are falsely involved in the offence alleged. As per the prosecution case, Bharatkumar was an eye witness, but for the reasons best known to the prosecution, he was not examined before the trial Court. There is difference in respect of injuries sustained by the complainant Lataben by the weapon alleged. That, the medical evidence is contrary to the ocular evidence given by the prosecution witnesses. That, presence of A2 was clearly doubtful, as per the deposition of the prosecution witnesses. That, the place of offence is also different as per the say of the prosecution. That, intention was never proved by the prosecution to commit murder by the respondents. That, timings of the offence is also different; as averred by the prosecution. It is for the first time A2-Ronald was identified by the complainant in a test identification parade. That, in her complaint, she has clearly stated that A2 was not identified by her and he was an Page 13 of 29 HC-NIC Page 13 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT unknown person. That, testimony of both the eyewitnesses cannot be relied upon as they are not trustworthy. That, discovery panchnama was never proved by the prosecution. That, panch witnesses have turned hostile before the trial Court and only on the testimony of Investigating Officer alone, the entire case cannot rest by the prosecution. That, Dr. Hasumati R Patel at Exh.28 has in fact not examined the injured- complainant and as per her deposition, the patient was referred for internal examination. That, four injuries received by the complainant were not possible to be caused by a single blow of weapon. That, there is no applicability of Section 307 IPC, as there were no serious injuries found on the person of the injured/complainant. That, no arrest panchnama was prepared by the prosecution during the investigation. That, the learned trial Judge has rightly acquitted the respondents accused. Finally, Shri Barot, learned advocate for the respondents-accused contended that in absence of there being any illegality or perversity in Page 14 of 29 HC-NIC Page 14 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT the impugned common judgment and order of acquittal, the same needs no interference by this Court, as the prosecution has miserably failed to prove guilt of the respondents-accused. Hence, it was requested to dismiss the present Appeals.
6. In our considered opinion, four main issues are argued before this Court and we shall now examine each and every contention, in light of the arguments adduced before us.
7. In the present case, complainant-PW Lataben in her examination-in-chief has stated that in a test identification parade, she was called where she identified A2 Ronald alias Raju Arnold Soloman, who was also present in the Court. It appears from her testimony that she has not stated the procedure and manner in which test identification parade was held. Even she has not stated that T.I parade was carried out in presence of two panchas. It appears from her cross examination that at 10:30 am, she started to proceed for T.I parade, but she had no idea where such parade Page 15 of 29 HC-NIC Page 15 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT was held. She also does not remember whether she was informed by the Police where she had to remain present for such test identification parade. 7.1 PW-6 Govindbhai Natvarlal Mehta, Executive Magistrate in his testimony has stated that on 3rd July 1989 at 16:15 hours, the complainant came and she was instructed to sit in a record room of the Court through a Peon as well as to call two panchas for Test Identification parade. It is further stated by this witness that T.I parade started at 16:30 hours. There is material contradictions in the version of these two witnesses ie., Executive Magistrate as well as complainant in respect of timings of Test Identification parade. 7.2 It is pertinent to note that PW-2 Varshaben though had stated that A2-Ronald @ Raju Arnold Soloman assaulted the complainant, she was not summoned to identify the said accused in a test identification parade. Therefore, it is difficult to accept her version. It is for the first time, complainant-Lataben identified A2 before the Court, but it is an undisputed fact that A2 was Page 16 of 29 HC-NIC Page 16 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT unknown to her, prior to the date of the incident. If any witness identifies any accused person for the first time in the court room, who is not known, that would not be sufficient to involve a person in the offence saying that he is the same accused who has played any role in the offence. As no test identification parade was carried out by calling PW-2 Varshaben and the complainant had identified A2 for the first time in the Court room, her evidence cannot be accepted as a gospel truth. 7.3 It also appears that there is a material difference in the timings of the incident. PW-1 Lataben in her testimony has stated that this incident took place at 5:30 pm, while her sister Varshaben says that during interval of a movie running on TV at 6:00 pm, the said incident occurred. Here, different versions would also be required to be considered, as in absence of any cogent evidence, it is difficult to take a judicial note as to at what time interval took place viz., at 6:30 pm or 7:30 pm. As per testimony of PW-Lataben, during the course of hot discussions, her sister Varshaben came to Page 17 of 29 HC-NIC Page 17 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT the place of incident. PW-Varshaben also supports the statement of her sister Lataben before the Court saying that on hearing hot discussions, she came out of the house. PW-Lataben says that there were three blows given to her on mouth by a weapon "razor", while Varshaben states that A1 gave one blow of razor on the cheek of her sister and his accomplice gave one blow with razor on the upper side of her eye and one blow on left hand. Complainant-Lataben in her examination-in- chief has stated nothing against A2 Ronald. She only says that at the time of incident, A2 Ronald was present with A1 Natvarsinh. She further states that after giving blow by a razor, A1 Natvarsinh, they both ran away from the place of incident.
7.4 Now if we consider testimony of the complainant Lataben, at the time of incident, A2 Ronald was only present in company of A1 Natvarsinh. No other allegations have been levelled against the A2. It is nowhere stated that during the altercation, A2 was inspired by A1 Natvarsinh or any criminal act was Page 18 of 29 HC-NIC Page 18 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT committed by A2. Varshaben has also stated that at the time of incident, A1-Natvarsinh was accompanied by his companion and after assailing her sister, both ran away from the place of incident. Considering the contradictory deposition of both these sisters viz., Lataben and Varshaben, it would be difficult to involve A2 Ronald in the crime, by solely relying upon deposition of PW-2 Varshaben holding him in guilt.
8. The second issue, which is of paramount consideration is testimony of PW-Varshaben. She has in her testimony before the Court below disclosed that in the holidays of summer in the year 1989, she came to Ahmedabad in company of her husband-Bharatbhai and children. At the time of incident, she herself, her two sisters, her mother and her husband and children were present. She further states that at about 6:00 pm, this incident took place, when there was interval in TV. During interval, her sister Lataben went out of the house to fetch water and at that time, hearing loud alarms made by her sister, she came out and saw two Page 19 of 29 HC-NIC Page 19 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT persons - out of them one was identified by her as Natvarsinh, who was tenant of her mother, who was accompanied by an unknown person, whom she does not known. Both of them took out razors from the pocket of their pant. Tenant Natvarsinh assaulted her sister on her cheek and the said unknown person assaulted her sister on the upper side of her left eye as well as on her left hand and after assaulting her sister, both of them fled away from the scene of occurrence. According to this witness, they first went to the Police Station for registering the complaint and thereafter her sister was shifted to Civil hospital for medical treatment. A-1 Natvarsinh Narayansinh Gohil who was tenant was identified before the trial Court. Unknown person who was also present in the Court was also identified by this witness. However, A2 was for the first time identified by this witness before the trial Court and hence prosecution case becomes doubtful and no reliance can be placed for such an evidence led by the prosecution. PW-Lataben has stated that on the day of Page 20 of 29 HC-NIC Page 20 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT incident, her mother, her sister-Varshaben, her husband-Bharatkumar were present in the house. This incident took place at 5:30 pm, when she went to fetch water, at that time, A1 Natvarsinh suddenly came there and asked her to permit him to fetch water. The complainant replied that after she fills up the bucket, he would be permitted to fetch the water to which a dispute arose. According to this witness, this dispute was started by A1 Natvarsinh who was armed with razor. He inflicted a razor blow on the complainant's right side neck, but injury was caused to her right cheek. During this hot discussion, hearing the screams, her sister Varshaben came out and at that time, A2 Ronald was also present. They immediately left the place of offence, after causing injuries to the complainant. Total three injuries were sustained by the complainant on her face. She tried to catch hold the assaulters and raised alarm, but they ran away.
9. It is pertinent to note that though other members viz., mother of the complainant, husband of her sister Page 21 of 29 HC-NIC Page 21 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT ie., Bharatkumar were present at home, no one has been examined by the prosecution before the trial Court. In such a case, when independent witnesses were available with the prosecution, by not examining these material and independent witnesses, the prosecution case appears to be doubtful. We feel that non examination of credible independent witnesses in this case is very much fatal to the prosecution's case. Particularly when it is their own case that there were several persons available in the vicinity. It is not necessary that in each and every case on the ground of non examination of independent witnesses, the case of prosecution has to be brushed aside, if the evidence of prosecution witnesses is consistent, cogent and corroborated by other evidence it can be safely relied upon, but it is not so in the case at hand because testimonies of PW-1 Lataben and PW-2 Varshaben did not inspire confidence.
10. Investigating Officer in his testimony before the trial Court says that the muddamal "razor" which was Page 22 of 29 HC-NIC Page 22 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT used in the offence was discovered in presence of panchas, at the instance of A1 Natvarsinh. The said discovery panchnama was prepared between 09:55 and 10:10 am in a Government vehicle, at the instance of A1, near the Power House bunglows where vehicle was stopped by A1 and nearby the wall of Power House, one razor having black cover with plastic handle was discovered by him, which was recovered and sealed as per details given in the panchnama. Further, this witness says that on the same line, A2 Ronald @ Raju Arnold Solaman also shown his willingness in discovering the weapon and hence a recovery panchnama was prepared at 7:30 am at his instance in the Government vehicle nearby the crossing of Power House, near JP Chawl where the vehicle was stopped by A2 and from southern side of wall, A2 found muddamal "razor" having cream colour handle, which was recovered in presence of panchas by preparing a panchnama. It is pertinent to note that none of the panchas have supported the prosecution case. As they Page 23 of 29 HC-NIC Page 23 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT have not supported the contents of the panchnama, their evidence cannot be considered at all.
11. Investigating Officer has stated in his examination- in-chief that muddamal weapon "razor" were not blood stained. Therefore, it would be difficult to say, under these circumstances that these weapons which were allegedly discovered by the Police, were used in the offence. Evidence on discovery can be considered as circumstantial evidence, which is not favouring the prosecution.
11.1 The very purpose of requiring a panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleged it was found. Unless a panch witness positively states that he has eye witnessed the alleged recovery, his mere signature on such recovery panchnama becomes useless in proving the recoveries. Here, the prosecution has tried to prove the discovery panchnama through police witnesses. It cannot be said Page 24 of 29 HC-NIC Page 24 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT that the article discovered was in exclusive possession of the accused and was recovered only on the information furnished by the accused. Such evidence would not be useful to convict the accused.
12. In respect of place of offence, different evidence has come on record. As per the say of complainant, incident took place near the water tank. In her cross examination, she admits that water tank is 7 to 8 ft. away from the gate of the compound of Bungalow. While PW-2 Varshaben in her cross examination says that while her sister Lataben was fetching water from the tank, she was in a compound, when this incident took place. Thereafter, changing her version, she further states that this incident took place in a Osri. Orsi and compound are common.
12.1 Investigating Officer Shri Darshansinh Thakorsinh Padiyar at Exh. 26 states that the place of offence was 14 fts. away from the gate and the Osri of Bunglow No.
50. The place of offence was identified by PW-2 Varshaben. The panchnama of the place of offence was Page 25 of 29 HC-NIC Page 25 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT not supported by panchas, and therefore, it was not proved by the prosecution. Therefore, it would be difficult to accept the testimony of Investigating Officer that the place of incident was 14 ft. away from the gate and Osri of Bunglow No. 50, as it is not supported by the testimony of Varshaben. Thus, it is difficult to identify the actual place of offence because the witnesses have given contrary depositions on the issue in dispute. It also transpires from the deposition of Lataben that there were three injuries caused to her on her right cheek, and whereas, medical evidence supports only two injuries to the complainant. The third injury on the right side of the face does not find support by medical evidence. It appears that on the outer side of the right cheek of the complainant there was a contuse wound and one cut wound on her left hand. There is no evidence given by this witness Lataben in her oral testimony before the Court that as to in what manner, these injuries were sustained by her. It appears that medical evidence is contrary to the ocular Page 26 of 29 HC-NIC Page 26 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT evidence given by the complainant, and therefore also, the prosecution case becomes very doubtful. 12.2 It is pertinent to note that as per the testimony of Lataben [PW-1] she was injured at three places on the right side of her face by a razor. While PW-11 Dr. Hasumatiben Ranchoodbhai Patel in her cross examination states that three injuries were sustained by the complainant on her right cheek, which were possible if three different assaults were made. Therefore, it can be said that by a single blow of razor, three injuries to the complainant would not be possible. No further evidence was led by the prosecution that by one blow of razor, how three injuries were possible. It is not placed on the record or evidence by the prosecution that injuries caused to the complainant were serious in nature and sufficient to cause death in a natural course; jointly or severally. On the contrary, it appears that on the very same day, at night, the complainant was discharged from the hospital after giving treatment. No other evidence in respect of Page 27 of 29 HC-NIC Page 27 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT seriousness of injuries sustained by the complainant is brought on the record by the prosecution. 12.3 Contradictions and omissions play vital role in criminal trial. The effect of the proof of contradictions is to discredit the witness as being unreliable as substantive evidence in the court is contrary to what he told the police. In such case, the only option before the Court will be to hold the substantive evidence of the said witness in the Court as unreliable, the facts which have come on record by way of omissions, if are excluded from the evidence of such witness, the only inference, which may emerge would be that the said witness has been nothing and he cannot be said to be an eye-witness to the alleged incident.
13. Therefore, we find that the prosecution case is filled with infirmities and lacunae, therefore, the only possible and probable course left open is to grant benefit of reasonable doubt to the respondents herein.
Resultantly, these Criminal Appeals fail. The bail bonds of the respondents stand discharged. Page 28 of 29 HC-NIC Page 28 of 29 Created On Thu Dec 28 00:03:35 IST 2017 R/CR.A/567/1994 CAV JUDGMENT R&P be transmitted back to the trial Court forthwith.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) Prakash Page 29 of 29 HC-NIC Page 29 of 29 Created On Thu Dec 28 00:03:35 IST 2017