Gujarat High Court
State Of Gujarat vs Budhabhai Babarbhai Parmar on 27 February, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
R/CR.A/1190/1994 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1190 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
================================================================
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
Versus
PUNAMBHAI PUNJABHAI PARMAR
================================================================
Appearance:
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR for the PETITIONER
HCLS COMMITTEE for the RESPONDENT(s) No. 2,3,4
MADANSINGH O BAROD for the RESPONDENT(s) No. 2,3,4
PETITION WITHDRAWN/DISMISSED for the RESPONDENT(s) No.
1,10,11,12,13,14,15,16,17,18,19,5,6,7,8,9
================================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 27/02/2018
ORAL JUDGMENT
Page 1 of 34
R/CR.A/1190/1994 JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this appeal under section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") has challenged the judgment and order of acquittal dated 18.8.1994 passed by the learned Additional Sessions Judge, Kheda in Sessions Case No.296 of 1993, whereby the accused have been acquitted of the offences punishable under sections 143, 147, 148, 149, 302, 324 read with section 34 of the Indian Penal Code.
2. While admitting the appeal on 22.2.1996, this court had recorded thus:
"Mr. D.N. Patel, Ld. APP in his usual fairness has submitted that having regard to the facts and circumstances of the case, he is not in a position to press this appeal for all the accused persons. However so far as Resp. Nos.2, 3 & 4 are concerned, Mr. Patel submitted that appeal deserves to be admitted. Regarding rest of the respondents, Mr. Patel has not pressed this appeal. Accordingly, Leave granted. Qua Resp. Nos.2, 3 & 4, Bailable Warrants be issued in sum of Rs.5000/- each and a surety of like amount. As regards rest of the respondents, this appeal stands dismissed."
3. In view of the above, the present appeal is restricted to the respondents No.2, 3 and 4.
4. On 28.5.1993, a first information report came to be Page 2 of 34 R/CR.A/1190/1994 JUDGMENT lodged by PW-2 Chhatrasinh Ishwarbhai Sodha Parmar declaring that he was residing with his parents. They had two and half bighas of land on the outskirts of Salun village and opposite their house, their paternal uncle Somabhai Babarbhai Parmar and Budhabhai Babarbhai Parmar had lands where they had constructed the houses and were residing.
4.1 About four years prior thereto, his father Ishwarbhai Ambalal Sodha Parmar had taken two and half bighas of land on mortgage from Budhabhai Babarbhai Parmar for a consideration of Rs.14,000/- for a period of seven years, out of which two and a half years were remaining. They had grown bajri (millet) as a summer crop on the mortgaged land, which was ready for harvesting. Despite this, Budhabhai Babarbhai Parmar since last some time, was quarreling with them and wanted to grab the land. On that day in the morning at around 7 o'clock, he, his father, his mother Madhuben, his wife Sumitra and his sister-in-law Lilaben were cutting the bajri crop on the mortgaged land and half the bajri had been cut. In the meanwhile, at around 9 o'clock, Budhabhai Babarbhai Parmar together with Somabhai Babarbhai, Punambhai Punjabhai, Maganbhai Muljibhai, Udesing Punjabhai, Ramanbhai Ramabhai, Bhalabhai Ramabhai and Raman Chandubhai, all of whom were armed with dharias (scythes) and sticks, came to assault them and hurled abuses at them and saying that they were not going to give them any money, and as the agricultural land belonged to them, they should not cut the bajri or else they would kill them. Therefore, out of fear, they stopped cutting the bajri and returned home.
4.2 Thereafter, after having meals, in the afternoon, as they Page 3 of 34 R/CR.A/1190/1994 JUDGMENT were to lodge a complaint in connection with the dispute, he and his father set off to go to Nadiad. At that time, at around 3:15, they reached the outskirts of Fatepur on foot and upon coming to a furrow behind Pajikui pond, all of a sudden, someone said, "Kill them. Salas, where are you going?". So, his father has said that they were going to Nadiad, whereupon Punambhai Punjabhai Parmar and Maganbhai Muljibhai Parmar who had dharias (scythes) with them, out of anger, raised the dharias to attack, whereby Punambhai Punjabhai inflicted a blow on the right side of his father's head, due to which he was wounded, and Maganbhai Muljibhai Parmar inflicted a blow with a dharia on his father's forehead on the front side and Shivabhai Fulabhai Parmar struck him with a stick on his right hand, therefore, his father fell on the ground. Whereupon Ramanbhai Chandubhai Parmar and Somabhai Babarbhai Parmar started giving stick blows on his back and he (the complainant) tried to flee shouting for help, whereupon Udesing Punjabhai Parmar struck him with a stick, injuring him on his left arm. He was trying to flee towards his village, whereupon, in the mob, Budhabhai Babarbhai Parmar, Ramanbhai Ramabhai, Bhalabhai Ramabhai Parmar, Chimanbhai Desaibhai Parmar, Desaibhai Becharbhai Parmar and Ranchhodbhai Desaibhai Parmar, holding sticks in their hands and Bhupatbhai Desaibhai Parmar with a spear in his hand, Chhaganbhai Muljibhai Parmar with a stick, Manubhai Muljibhai Parmar with a dharia, Vinubhai Shivabhai Parmar, Hathibhai Fulabhai with sticks and Vikrambhai Punjabhai Parmar and Raijibhai Kabhaibhai Parmar with spears in their hands, all of them chased him with a view to assault him. He fled from there shouting and upon reaching near the village, all those persons turned back with their weapons. Thereafter, Page 4 of 34 R/CR.A/1190/1994 JUDGMENT with a view to ascertain as to whether his father was alive, he came to the furrow near Pajikui, and upon hearing his shouts, his brother Harshad, his mother Madhuben, his wife, his sister- in-law Lilaben, his younger brother Gunvantsinh and his sister Champa, all of them came running near his father. They saw that his father was profusely bleeding and was unconscious and was not speaking and hence, his brother Harshad brought Mahendra Parmar's rickshaw from the village and after making his father sit in the rickshaw, he, his mother and his brother Harshad came to the Nadiad Civil Hospital, where the doctor gave him treatment and during the course of treatment, he passed away. Accordingly, he has alleged that all the above persons, with a view to take away the mortgaged land as well as to grab the crop of bajri which was growing thereon, had come together with weapons and assaulted them and caused fatal injuries to his father and had also caused injuries to him with sticks.
5. After the lodging of the complaint, the Investigating Officer carried out the investigation and upon finding sufficient evidence against the accused, submitted a chargesheet in the court of the concerned Magistrate who committed the case to the Court of Sessions at Kheda, where it came to be registered as Sessions Case No.296 of 1993.
6. Before the trial court, the prosecution has examined in all twelve witnesses and produced certain documentary evidence on record. The trial court after appreciating the evidence on record, found that the prosecution had not established the charge against the accused and acquitted them.
Page 5 of 34R/CR.A/1190/1994 JUDGMENT
7. Mr. Pranav Trivedi, learned Additional Public Prosecutor took the court through the testimonies of the witnesses as well as the documentary evidence on record. It was submitted that through the testimony of PW-2 Chhatrasinh Ishwarsinh Sodha Parmar, the prosecution had duly established the charge against the accused. It was submitted that the said witness is an injured eyewitness, in whose presence his father had been assaulted and that the trial court for irrelevant reasons, has discarded the testimony of the said witness. It was submitted that while it is true that there are some exaggerations and embellishments in the testimony of the said witness, however, the core of his testimony is credible and hence, there was no reason for the trial court to discard his testimony. It was submitted that one circumstance which prevailed upon the trial court for acquitting the accused is that no independent witness had been examined before the the trial court. It was submitted that one independent witness, namely, Abhesing Parmar has been duly examined by the prosecution, however, the said witness had not supported the prosecution case and had been declared hostile. It was submitted that it is common knowledge that in serious offences, it is difficult to get independent witnesses to depose for the prosecution. Besides, it is also settled law that merely because the witnesses are related witnesses, is no reason to discard the testimony of such witnesses. It was submitted that merely because the witnesses are related, they would have no reason to falsely implicate any accused and to let the real culprit to go scotfree. It was submitted that the first information report had been lodged immediately after the witnesses had taken the deceased to the hospital. It was submitted that the prosecution has adduced sufficient evidence to prove the charge against Page 6 of 34 R/CR.A/1190/1994 JUDGMENT the accused and that the trial court was not justified in acquitting them.
7.1 In support of his submissions, the learned Additional Public Prosecutor placed reliance upon a decision of the Supreme Court in the case of State of Uttar Pradesh v. Naresh and others, (2011) 4 SCC 324, for the proposition that a mere relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. The court held that mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars, that is, go to the root of the case/materially affect the trial or core of the prosecution's Page 7 of 34 R/CR.A/1190/1994 JUDGMENT case, render the testimony of the witness liable to be discredited. It was submitted that in the facts of the present case, PW-2, Chhatrasinh in his testimony has referred to an incident of 9 o'clock when he and his father had set off to go to Nadiad to lodge a complaint when the accused were sitting at the corner and out of fear, they had returned back. At that time also, those people had told them to flee else they would kill them. It was submitted that this part of the evidence of the witness is a mere elaboration of the statement made before the police and that the trial court was not justified in considering the same to be an omission which goes to the root of the matter and affects the prosecution case.
8. On the other hand, Mr. M.O. Barad, learned advocate for the respondents submitted that the trial court has duly and properly appreciated the evidence on record while acquitting the accused. It was submitted that the Medical Officer, PW-1, Dr. Suraj Ramswaroop Parasar had deposed that on 28.5.1993 in the evening at 4:10, one Hathibhai Fulabhai Parmar, resident of Fatepura had brought Ishwarbhai Ambalal Parmar (the deceased) for treatment to the Civil Hospital, Nadiad. It was submitted that therefore, the version given by the complainant that he, his mother and brother had brought the deceased to the hospital, is falsified by the testimony of the medical witness. It was submitted that therefore, the presence of the complainant at the scene of incident is doubtful and that there is reason to believe that he is not an eyewitness. It was further submitted that from the nature of the injuries sustained by the complainant, viz., PW-2, Chhatrasinh, it has come on record that such injuries could be sustained if one falls while running. In these circumstances, presence of PW-2, Page 8 of 34 R/CR.A/1190/1994 JUDGMENT Chhatrasinh at the scene of incident is doubtful and the trial court was, therefore, justified in not believing the said witness.
8.1 It was further submitted that except for the testimony of PW-2, Chhatrasinh, there is no other witness to link the accused with the offence in question. According to the learned advocate, there must be other corroborative evidence to support the witness and in the absence of the same, the trial court was wholly justified in holding that the prosecution had not established the charge against the accused. It was submitted that though it was Hathibhai who had brought the deceased to the hospital, the prosecution has not examined him. It was further pointed out that all the panch witnesses have not supported the prosecution case and have been declared hostile and therefore, the recovery and discovery panchnamas have not been proved. It was urged that the entire prosecution case is based upon the testimony of the sole eyewitness who is not found to be credible by the trial court, and therefore, no conviction can be made on the basis of the testimony of such witness.
8.2 Referring to the testimony of the first informant, it was pointed out that in his cross-examination, the witness has stated that he did not know as to whether anyone had accompanied them to the hospital as he was in an unconscious condition, and that at the time of recording of the first information also, his mind was in an unconscious state, to submit that the witness being unconscious, could not have been in a fit state of mind to give the complaint. It was further submitted that according to the testimony of the first informant, about nineteen persons had assaulted his father Page 9 of 34 R/CR.A/1190/1994 JUDGMENT and had chased him. If nineteen persons had chased the complainant, it is not possible that he could have escaped without sustaining serious injuries. It was submitted that therefore, the testimony of the said witness does not merit acceptance. It was further submitted that the muddamal weapons have not been identified by Harshadbhai and no FSL reports had been obtained as regards the bloodstains on the muddamal weapons and in the absence of the FSL report, the accused cannot be convicted.
8.3 In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Deny Bora v. State of Assam, (2014) 14 SCC 42, for the proposition that conviction can be based on the testimony of a singular witness provided he is wholly reliable. But if there are doubts about the testimony, the court will insist on corroboration. It was submitted that in the facts of the present case, the testimony of the solitary witness Chhatrasinh cannot be fully and completely be relied upon and hence, the court should insist on corroboration to the testimony of the said witness, whereas in the facts of the present case, there is none.
9. In the backdrop of the facts and contentions noted hereinabove, the culpability of the respondents No.2, 3 and 4 is required to be examined.
10. This court is fully conscious of the fact that it is entertaining an appeal against the order of acquittal. Thus, the court has to scrutinise the facts of the case cautiously and keeping in mind the parameters fixed by the Supreme Court in this regard. It is well settled as held by the Supreme Court in Page 10 of 34 R/CR.A/1190/1994 JUDGMENT Babu v. State of Kerala, (2010) 9 SCC 189, that every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. The law in this regard is well settled that while dealing with a judgment of acquittal passed by the trial court, the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court has failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. In exceptional cases, where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. So, in order to warrant interference by the appellate court, a finding of fact recorded by the court below must be outweighed evidence or such finding if outrageously defies logic as to suffer from the vice of irrationality.
11. The charge against the accused is that on 28.5.1993, in the afternoon, the deceased and his son were going from the outskirts of Fatepur village to the police station at Nadiad for lodging a complaint. At that time, all the accused got together and formed an unlawful assembly and with a view to fulfill their common object, used unlawful force and wielded deadly Page 11 of 34 R/CR.A/1190/1994 JUDGMENT weapons and with the intention of causing serious injuries, used unlawful force and indulged in rioting and committed the offence punishable under sections 143 and 147 of the Indian Penal Code. Accused No.1 with a stick, accused No.2 and 3 with dharias (scythes), accused No.4 to 12 with sticks, accused No.13 with a spear, accused No.14 and 17 with sticks and accused No.18 and 19 with spears in their hands, attacked deceased Ishwarbhai Parmar and accused No.7 caused serious injuries to the complainant. The accused have been charged for the offences punishable under sections 143, 147, 148, 149, 302, 324 read with section 34 of the Indian Penal Code as well as section 120-B of the Indian Penal Code.
12. PW-1, Dr. Suraj Ramswaroop Parasar has been examined at Exhibit-28. He has deposed that on 28.5.1993, at 4:10 in the evening, Hathibhai Fulabhai Parmar, resident of Fatepura brought Ishwarbhai Ambalal Parmar for treatment to the Civil Hospital, at Nadiad. Upon examining him, he was found to be dead. The Nadiad Rural Police Station was informed in this regard by telephone. He received the dead body for autopsy at 6:30 in the evening. The witness has deposed regarding the injuries sustained by the deceased. He has stated that the cause of death was "cardio-respiratory failure following intracranial haemorrhage due to fracture of right parietal bone due to injury on the right side of skull". He has further deposed that injuries were such as could be caused by dharia and sticks. The witness has proved the postmortem report which is exhibited as Exhibit-29. The witness has further deposed that on the same day, that is, on 28.5.1993, in the evening at 6:45, Chhatrasinh had come to him with a yadi and he had examined him. Chhatrasinh had sustained a contusion Page 12 of 34 R/CR.A/1190/1994 JUDGMENT admeasuring 4" x 3/4" on his right hand which was a simple injury and could be caused by a hard blunt substance. He was treated as an outdoor patient. He has stated that he had given an injury certificate to Chhatrasinh which had been exhibited as Exhibit-31. In the cross-examination of the witness, he has stated that he is not in a position to say as to how many persons other than Hathibhai had brought deceased Ishwarbhai. He has further stated that after examining Ishwarbhai, he had given a vardhi by telephone at about 4:25 p.m.
13. PW-2, Chhatrasinh Ishwarbhai Sodha Parmar, the complainant and sole eyewitness has been examined at Exhibit-32. The witness has inter alia stated that his father had taken Budhabhai Babarbhai's land on mortgage for Rs.14,000/- and such land was in their possession and they had cultivated bajri on it. His father had taken the land on mortgage four and half years prior to the incident for a period of seven years and two and half years still remained. At around 7 o'clock in the morning, they were cutting the bajri in the field. He, his mother, his wife, his sister-in-law Lilaben and his father were in the field. At that time, Budhabhai Babarbhai came there and told them not to cut the bajri. Along with Budhabhai, Somabhai Babarbhai, Punambhai Punjabhai, Maganbhai Muljibhai, Udesing Punjabhai, Ramanbhai Ramabhai, Bhalabhai Ramabhai and Ramanbhai Chandubhai had also come. They had come with dharias and sticks and had come to assault them. They had told them that they were not going to give them any money and that the land was theirs. They told them to flee to their home or else they would kill them. Thereafter, they all had returned home. That thereafter, at around 9 Page 13 of 34 R/CR.A/1190/1994 JUDGMENT o'clock, he and his father set off to go to Nadiad to lodge a complaint, at which point of time, these persons were sitting at the entrance and out of fear, they had returned home. At that time, these persons had told them to flee or else they would kill them. Thereafter, at about 3 o'clock in the afternoon, he and his father set out to go to Nadiad to lodge a complaint. Near the pond near Fatepur village, they came from behind in the furrow and asked as to where they were going. His father said that they were going to Nadiad. Punambhai Punjabhai dealt a blow with a dharia on the right side of his father's head. Maganbhai Muljibhai dealt a dharia blow on his father's forehead. Shivabhai Fulabhai inflicted a stick blow on his father's wrist, due to which his father fell down on the ground. Somabhai Babarbhai and Ramanbhai Chandubhai dealt stick blows on his father's back. He (the witness) shouted for help and tried to escape, whereupon Udesing Punjabhai struck him with a stick. In the meanwhile, from the mob, Budhabhai Babarbhai, Bhalabhai Ramanbhai, Ramanbhai Ramabhai, Chimanbhai Desaibhai, Desaibhai Becharbhai, Ranchhodbhai Desaibhai, all with sticks in their hands, as well as Bhupatbhai Desaibhai, with a spear in his hand, Chhaganbhai Muljibhai and Hathibhai Fulabhai, both with sticks in their hands, Vinubhai Shivabhai and Manubhai Muljibhai, with dharias in their hands, Vikrambhai Punjabhai and Raijibhai Kabhaibhai with spears in their hands, all of them followed him and ran after him to assault him. Shouting for help, he had reached near the village and after coming at a distance of 50 to 100 feet, those people turned back and fled. He went to see whether his father was alive and to ascertain it he went to where his father had fallen down. Upon hearing his shouts, his brother Harshad, his mother, his wife, his sister-in-law Lilaben, his younger brother Page 14 of 34 R/CR.A/1190/1994 JUDGMENT and sister Champa had reached there. At that time, his father was lying in an unconscious condition and was profusely bleeding. His elder brother Harshad brought a rickshaw from Mahendrabhai Parmar of their village and after making his father sit in the rickshaw, he had come to Nadiad Civil Hospital. There, while being treated by the doctors, his father passed away. He too had availed treatment from the doctor. The police had come to the hospital and had recorded his complaint. The first information report Mark 27/1, is shown to the witness and he has identified his signature thereon. He has stated that the police had written down the complaint as stated by him and that he had signed it in the presence of the police. On the next day, his father's dead body was handed over to them. Firstly, he has stated that he was treated in the hospital as an indoor patient for two days, but thereafter has stated that he was not admitted in the hospital and that after giving him treatment, he was discharged. The witness has thereafter identified the accused as the persons who had come to assault his father.
13.1 In the cross-examination of this witness, it has come out that he had studied upto the 12th standard and had passed 12th standard. The accused are residents of Fatepur village, whereas they (the witness and others) were residing at the outskirts of Salun Tadpat village. Their village is near Fatepur at a distance of about four to five kilometers from Nadiad. In his cross-examination, it has further come out that in relation to the agricultural land in which they were cutting bajri on the day of the incident, a civil suit is pending in the court. The witness has further stated that neither he nor his father had mentioned the morning incident to the head of the village or Page 15 of 34 R/CR.A/1190/1994 JUDGMENT the Sarpanch. They had not talked about the morning incident to anyone at Fatepur or Salun village. The dispute regarding the land was with Budhabhai Babarbhai and all the accused. In the cross-examination of the witness, it has further come out that he is not aware as to whether his father had any transaction with any of the accused other than Budhabhai Babarbhai in relation to land. He has stated that all the accused are relatives and that prior to the incident, no violence had taken place with Budhabhai. Prior to the incident, there was a dispute with Punambhai Punjabhai regarding cutting of a neem tree. There was no violence and there was only exchange of words. It has further come out that prior to the incident, they had relations of visiting each other. In his cross-examination, it has further come out that they were cutting the bajri at 7 o'clock and after the incident at 9 o'clock, they had gone home.
13.2 The witness has been cross-examined with regard to the topography of the area and the persons who were residing next to the furrow. In his cross-examination, it has come out that he, his mother and his brother Harshad had gone with his father in a rickshaw to the hospital. He has stated that he did not know who else had gone as he was in an unconscious/disturbed condition. The witness has further stated that he is not aware as to whether Hathibhai Fulabhai of his village had come to the hospital. He has stated that they had brought his father straight to the Nadiad Civil Hospital and that they had not gone to the police station. When his complaint was recorded, his mother and his brother were with him. The witness is not aware as to whether Hathibhai was there. He has denied that his mother and brother had given Page 16 of 34 R/CR.A/1190/1994 JUDGMENT the names of the accused. The witness has admitted that when his father was being assaulted, he had not intervened to save him. From his cross-examination, it has come out that from the place where his father was lying, it would take fifteen to twenty minutes to reach their house on foot.
14. PW-3, Harshadbhai Ishwarbhai Sodha Parmar has been examined at Exhibit-33. He has deposed that on the day of the incident, he had gone out of station and had returned home at about 2 o'clock in the afternoon. At about 2:30 in the afternoon, his father and his brother Chhatrasinh were going to Nadiad to lodge a complaint. At around 3 o'clock, he heard shouts from the furrow, and hence, he went there. His father was lying in the furrow in a profusely bleeding condition. He had seen Punambhai Punjabhai, Maganbhai Muljibhai and Shivabhai Fulabhai, all three of them, running from the furrow towards the south. Punambhai Punjabhai and Maganbhai Muljibhai had dharias with them and Shivabhai Fulabhai had a stick. On seeing his father's condition, he had called a rickshaw from the village and taken his father to the Civil Hospital, at Nadiad. Till they reached the Civil Hospital, his father was alive. Thereafter, his father died during the course of treatment. His brother Chhatrasinh had sustained injuries on his left hand and had availed of treatment at the hospital. At the hospital, the police had come and had recorded his brother Chhatrasinh's complaint. At the time when his brother lodged the complaint, both he and his mother were present at the hospital. The complaint was given by his brother Chhatrasinh. The witness has stated that Punambhai Punjabhai, Maganbhai Muljibhai and Shivabhai Fulabhai were present in the court and has identified them.
Page 17 of 34R/CR.A/1190/1994 JUDGMENT 14.1 In the cross-examination of the witness, it has come
out that there is fifteen feet wide furrow where his father had fallen down, and on both sides of the furrow, there are agricultural fields. He has further stated that on both sides of the furrow, there are hedges of the agricultural fields and that the furrow is one to two feet lower than the level of the agricultural fields. The furrow is a public road and is used for commutation. The witness has been cross-examined with regard to the topography of the area and the distance between his house and the place where his father was lying in the furrow. In his cross-examination, it has come out that after he reached the scene of incident, the people residing in the nearby houses had gathered there and that before he reached there, about ten persons residing in the nearby houses had reached the place where his father had fallen down. In his cross-examination, it has further come out that Hathibhai Fulabhai Parmar had come to the hospital with his father in the rickshaw. Chhatrasinh and his mother had come together in a rickshaw to the hospital. The witness is confronted with his previous statement recorded by the police to the effect that he has not stated that his father had told him that they had gone to cut bajri in the field, at that time they had come to the field with dharias and sticks and had threatened to kill them, that they should leave the field and they did not want to give money, and that upon their saying so, they had come out of the field. The trial court has recorded that the contradiction is limited to the word "threatened". A contradiction is brought out in the testimony of the witness that in his police statement, he had not stated that he had heard shouts for help from the furrow. He has further stated that he had seen three Page 18 of 34 R/CR.A/1190/1994 JUDGMENT persons from a distance of about fifty feet and that he had seen them from the back.
15. PW-4, Abhesingbhai Ravjibhai Parmar has been examined at Exhibit-34. This witness has deposed that he was residing in the agricultural field situated near Pajikui pond situated on the outskirts of Salun village. The incident had taken place around fourteen months prior thereto. At the time when the incident took place, he was sleeping below a neem tree. He had gone to sleep at around 12:00 to 12:30. There was a commotion and therefore, he woke up. There were shouts from the furrow behind his house. He had gone there and seen that Ishwarbhai Ambalal was lying in the furrow. When he reached there, other persons from nearby had come there and were saying that somebody had assaulted and gone away. The witness has stated that he had not seen anyone. Thereafter, Ishwarbhai's son took him (Ishwarbhai) to the hospital. The witness has stated that after he woke up, he had not seen the incident. He has further stated that Pravinbhai Shanabhai's agriculture field is situated next to his field and his house is also situated in the said field. The said witness has not fully supported the prosecution case and has been declared hostile and has been cross-examined by the learned Additional Public Prosecutor. In the cross-examination of the witness by the learned advocate for the defence, it has come out that the witness knew the complainant's brother Harshad and that he had come to the scene of incident fifteen minutes after the incident.
16. PW-5, Ramanbhai Chhaganbhai Parmar is the panch of the panchnama of scene of offence. He, however, has not supported the prosecution case and has been declared hostile.
Page 19 of 34R/CR.A/1190/1994 JUDGMENT PW-6, Bhalabhai Mohanbhai Parmar is a panch of the scene of offence panchnama and he has duly proved the panchnama, Exhibit-44. In his cross-examination, he has admitted that time and again, he goes to the rural police station.
17. PW-7, Ketankumar Chhaganbhai Parmar is the panch of the inquest panchnama and has duly proved the panchnama, Exhibit-46. In his cross-examination, it has come out that he is a friend of PW-3, Harshad. A perusal of the inquest panchnama, Exhibit-46 reveals that the deceased has been identified by PW-2 Chhatrasinh Ishwarbhai Parmar.
18. PW-8, Vikrambhai Poonambhai Parmar is the panch of the arrest panchnama. He has not supported the prosecution case and has been declared hostile. PW-9, Bachubhai Vitthalbhai Patel is a panch of the discovery panchnama whereby weapons were recovered at the instance of the accused. This witness has duly proved the panchnamas Exhibit-49 and 50. Though this witness has been declared hostile, by and large, his testimony supports the prosecution case and both the panchnamas Exhibit-49 and 50, stand duly proved through his testimony. PW-10, Raj Mahendrasing Fatesinh is the second panch of the discovery panchnama. He too has supported the panchnama. The panchnamas Exhibit-49 and 50, therefore, stand duly proved. PW-11, Ramanbhai Bhavabhai Parmar is a panch of the discovery of a weapon at the instance of Hathibhai Fulabhai. This witness has not supported the prosecution case and has been declared hostile.
19. PW-12, Bhimbahadur Jungbahadur Shahi, viz., the Investigating Officer has been examined at Exhibit-56. This Page 20 of 34 R/CR.A/1190/1994 JUDGMENT witness has deposed that on 28.5.1993, he was discharging duties as a Senior Police Inspector at Nadiad Rural Police Station when he received a telephone vardhi from Dr. Parashar from the Civil Hospital, whereupon they had gone to the Civil Hospital and recorded the complaint of Chhatrasinh Ishwarbhai Sodha Parmar. The witness has identified the signature of Chhatrasinh as well as his own signature. The witness has deposed that when he recorded the complaint, Chhatrasinh was physically fit and that the complaint had been recorded as dictated by him. The first information report is exhibited as Exhibit-57. The witness has stated that thereafter, he had sent the complaint for registration to the police station and after it came to be registered, he had taken charge of the investigation. Thereafter, the inquest panchnama of the dead body came to be drawn. Thereafter, Chhatrasinh had shown the scene of offence whereupon a detailed panchnama came to be drawn and samples of blood stained earth as well as control earth came to be taken. Thereafter, statements of witnesses came to be recorded. The witness has further stated that the panchnama of the disputed agricultural land came to be drawn, which is exhibited as Exhibit-36. The Investigating Officer has deposed regarding various panchnamas drawn by him during the course of investigation.
20. From the cross-examination of the witness, an omission has been brought out to the effect that the first informant Chhatrasinh Ishwarbhai had, in his complaint, not stated that thereafter at about 9 o'clock, he and his father had set off towards Nadiad for lodging a complaint, at that time, they were sitting at the corner and out of fear, they had returned back. Those people had told them not to come back or else Page 21 of 34 R/CR.A/1190/1994 JUDGMENT they would kill them. In the cross-examination of the witness, an omission has been brought out to the effect that Harshad Ishwarbhai, in the statement recorded by him, had not stated that he had heard shouts from the furrow.
21. From the evidence which has come on record, it is amply clear that the fulcrum of the prosecution case is the testimony of PW-2 Chhatrasinh, son of deceased Ishwarbhai, who is also an injured eyewitness. Examining the testimony of the witness in the context of the evidence that has come on record, the witness has deposed that in the morning at about 7 o'clock, he as well as his family members were cutting the bajri (millet) crop in the field which Ishwarbhai had taken on mortgage from accused No.1 - Budhabhai Babarbhai Parmar, viz., the respondent No.1 herein, when the accused came there armed with dharias (scythes) and sticks and told them to stop cutting the bajri, else they would be done to death, whereupon out of fear, they stopped harvesting the crop and returned home. This version of the witness finds support in the panchnama, Exhibit-36, which came to be drawn on 29th May, 1993 of the agricultural field bearing Block No.397, situated in the outskirts of Salun village in the Talpat area, wherein half of the bajri crop is shown to be standing and on the eastern part, half of the bajri crop has been cut and part of it is standing. Thus, the version given by the witness that after they had cut the bajri to a certain extent, the accused had come to the field and threatened them, whereafter they had stopped cutting the bajri, is corroborated by the said panchnama.
22. The witness has further deposed that at 3 o'clock in the afternoon, he and his father were going to Nadiad to report the Page 22 of 34 R/CR.A/1190/1994 JUDGMENT incident that had taken place in the morning and when they reached the furrow near the pond near Fatepur village, the accused came from behind and confronted them by asking them as to where they were going, in response to which his father has said that they were going to Nadiad. Poonambhai Punjabhai (respondent No.2) inflicted a blow on the right side of his father's head with a dharia and Maganbhai Muljibhai (respondent No.3) gave a dharia blow on the front side of his father's forehead and Shivabhai Fulabhai (respondent No.4) struck his father on the wrist of his right hand with stick, due to which, his father fell on the ground whereafter the other accused assaulted him with sticks. The witness tried to flee shouting for help, whereupon Udesing Punjabhai dealt a blow with a stick on his "left arm" and in the meanwhile, the accused who were armed with sticks, dharias and spears chased him till he reached near the village and then turned back and went away.
23. Insofar as the injury sustained by the witness is concerned, the same is duly corroborated by the medical evidence, viz., the testimony of PW-1, Dr. Suraj Ramswaroop Parasar who has deposed that on 28.5.1993, in the evening at 6:45, this witness had come to him with a police yadi and he had sustained a 4 inch x 3/4 inch contusion on his right hand which could be caused by a hard and blunt substance. While the Medical Officer, in his testimony, has referred to "right hand", the injury certificate (Exhibit-31) mentions "left arm". Therefore, it appears that the medical witness has erroneously referred to the right arm during the course of his testimony. The testimony of PW-2, Chhatrasinh as regards the injury sustained by him, therefore, finds support from the testimony Page 23 of 34 R/CR.A/1190/1994 JUDGMENT of the medical witness. While in his cross-examination, the Medical Officer has admitted that such injury could be self- inflicted or could be sustained if a person falls down while he is running, having regard to the evidence which has come on record, there is no reason to believe that such injury was either self-inflicted or was sustained on account of a fall. It may be noted that the incident had taken place at about 3 o'clock in the afternoon; the deceased was brought to the hospital at 4:10 in the afternoon; thereafter the first information report was lodged at the hospital by PW-2 Chhatrasinh; the inquest panchnama came to be drawn from 17:30 to 18:15 hours, wherein the crime register number is mentioned and it was Chhatrasinh who had identified the body and PW-2 Chhatrasinh was examined by the Medical Officer at 6:45 p.m. Therefore, when the events happened in quick succession as noted hereinabove, there was hardly any scope of sustaining the injury in the manner suggested in the cross- examination of the Medical Officer. Thus, there is no reason to disbelieve the witness when he says that he had sustained such injury on account of a stick blow. The presence of the witness at the scene of incident, therefore, cannot be doubted.
24. It may be further noted that the autopsy of the dead body of the victim came to be conducted on the next day in the morning at 8:30. Thus, the inquest panchnama as well as the postmortem report came to be drawn after the registration of the first information report. It is, therefore, evident that the injuries mentioned in the first information report are on the basis of the knowledge of the witness and are not based upon the injuries recorded either in the inquest panchnama or in the postmortem report.
Page 24 of 34R/CR.A/1190/1994 JUDGMENT
25. PW-2, Chhatrasinh has further deposed that his father was dealt dharia blows on the right side of his head and in the front of his forehead and a stick blow on his right wrist, whereafter he fell down and the other accused assaulted him with sticks. A perusal of the postmortem report shows that the deceased had sustained the following injuries:
(1) Incised wound with contused margin on right parietal region skull. Size 3" x 1/2" bone deep. (2) Lacerated wound on the forehead. Size 1" x 1/2" x 1/2".
(3) Fracture Lower 1/3 of right radius ulna.
Thus, insofar as the injuries stated to have been inflicted by the respondents No.2, 3 and 4 are concerned, the deceased had sustained corresponding injuries. Having regard to the sequence of events, it is difficult to believe that PW-2, Chhatrasinh who at the relevant time was only 17 years of age, could have concocted the facts which find corroboration in the medical evidence, that too, within a short span of after the incident. Clearly therefore, PW-2, Chhatrasinh was present at the scene of incident and had witnessed his father being assaulted.
26. Insofar as the place of incident is concerned, the same also finds support in the testimony of PW-4 Abhesingbhai Ravjibhai Parmar. Though this witness has not fully supported the prosecution case and has been declared hostile, he has deposed that he had gone to sleep below a neem tree outside his house at 12:00 to 12:30 and woke up when he heard Page 25 of 34 R/CR.A/1190/1994 JUDGMENT commotion. The commotion was in the furrow behind his house and he went there to see and found that Ishwarbhai Ambalal was lying in the furrow. Thereafter, Ishwarbhai's sons and others took him to the hospital. Therefore, the fact regarding the incident having taken place in the furrow and Ishwarbhai's sons having taken him to the hospital, find support in the testimony of this witness.
27. PW-2, Chhatrasinh, in his cross-examination, has stated that he, his brother and his mother had gone with his father in a rickshaw to the hospital and he does not remember as to who else was there as he was in an unconscious/disturbed condition. He has stated that he was not aware as to whether his uncle Hathibhai Fulabhai Parmar had come to the hospital. He has also stated that when the first information report was recorded, his mind was in an unconscious condition. It may be noted that the word used by the witness is "Bebhan" which means "unconscious" and could also mean that he was in a disturbed state of mind. Significantly, the witness was 17 years of age when the incident took place. He had witnessed his father being done to death and it is but natural that he would be in a mentally disturbed condition and would not be in a position to note all that was going around, including the persons who had come to the hospital. Therefore, not being aware as to whether his distant uncle Hathibhai Fulabhai Parmar had come to the hospital would not dent the credibility of the witness.
28. Insofar as the motive for the commission of the offence is concerned, it has been brought out in the cross-examination of the witness that there were disputes regarding the land Page 26 of 34 R/CR.A/1190/1994 JUDGMENT between the parties and a civil suit was pending in the court. The morning incident was, therefore, a precursor to the afternoon incident when ultimately fatal injuries were caused to the complainant's father. Thus, the motive for commission of the offence stands duly established.
29. On a perusal of the testimony of the PW-2 Chhatrasinh, it is found that the witness is consistent in the version given by him in his testimony before the court and in the first information report lodged before the police. Though the witness has been subjected to detailed cross-examination, nothing substantial has been elicited so as to dent the credibility of the said witness. The Supreme Court in the case of Akhtar and others v. State of Uttaranchal, (2009) 13 SCC 722, has held that if the prosecution case is supported by two injured eyewitnesses and if their testimony is consistent before the police and the court and corroborated by the medical evidence, their testimony cannot be discarded. In Surender Singh v. State of Haryana, (2006) 9 SCC 247, the Supreme Court held that the testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes. In State of M.P. v. Mansingh and others, (2003) 10 SCC 414, the Supreme Court held that the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
30. The trial court, in the impugned judgment and order, has discarded the testimony of the injured witness. The findings Page 27 of 34 R/CR.A/1190/1994 JUDGMENT recorded by the trial court would, therefore, need to be examined as to whether any compelling reasons existed for discarding the testimony of the said witness. The trial court has assigned the following reasons for not accepting the testimony of PW-2, Chhatrasinh and acquitting the accused.
31. According to the trial court, when around nineteen persons had attacked the complainant and his father, it was not possible for the complainant to escape with nominal injuries. Since the injuries sustained by him were such as could be sustained if a person falls down while running, his presence at the scene of offence is doubtful. In the opinion of this court, the main target of the accused was the complainant's father, Ishwarbhai with whom there was a land dispute. Besides, when a person is running for his life, the number of persons who chased him is immaterial as long as he can outrun them. The reasoning given by the trial court that considering the number of assailants, the complainant could not have escaped with nominal injuries is, therefore, based merely on conjecture. Besides, merely because such injuries could have been sustained if one falls down while running, is no reason to disbelieve that the complainant inasmuch as the injuries sustained by him match the version given by him and are duly corroborated by the medical evidence, more so, considering the short gap of time, there was hardly any time for him to concoct a story as well as such injuries.
32. Another reason for not believing the testimony of the said witness is that the Medical Officer had stated that Hathibhai Fulabhai Parmar had brought the deceased to the hospital, whereas the complainant had stated that he, his mother and Page 28 of 34 R/CR.A/1190/1994 JUDGMENT brother had brought his father to the hospital in a rickshaw and is not aware as to whether or not Hathibhai Fulabhai was there. It may be noted that the medical case papers of the deceased have not been produced on record and hence, there is nothing to show as to on what basis the Medical Officer has stated that the deceased was accompanied by Hathibhai. Moreover, PW-3, Harshadbhai has deposed regarding Hathibhai having come to the hospital with the deceased. In the opinion of this court, it is not uncommon that in a situation like in the present case, when a person is taken to the hospital in an emergency, it would normally be the elder person in the family who would talk to the Medical Officer. Therefore, Hathibhai being an uncle, it is quite likely that he may have talked to the Medical Officer and accordingly, the Medical Officer may have noted his name as the person who brought the deceased to the hospital. However, that by itself is no reason to doubt the version given by the complainant PW-2 Chhatrasinh. As regards not remembering the presence of Hathibhai at the hospital, one has to consider the mental state of a seventeen year old boy who has witnessed his father being done to death in a violent manner. One can hardly expect him to keep note of the persons who were present in the hospital at that time. Moreover, considering the sequence of events that have unfolded, there is no reason to disbelieve the witness when he says that he was not in a conscious/proper state of mind at the time when his father was brought to the hospital.
33. The trial court has not further accepted the testimony of the witness because he has referred to an incident of 9 o'clock in the morning, that after the incident whereby the accused Page 29 of 34 R/CR.A/1190/1994 JUDGMENT had threatened them and told them not to cut the bajri crop and they had returned home, at around 9 o'clock, the witness and his father had set out to go to Nadiad to lodge a complaint, at that time, these persons were sitting at the corner and out of fear, they had returned; at that time also, those persons had told them to flee as they would be done to death, which did not find place in the first information report, holding that this was an important omission amounting to a contradiction and that the witness had failed to state an important fact and was a person who had the tendency of exaggerating things. Insofar as this finding of the trial court is concerned, it is settled legal proposition that a first information report is not an encyclopedia of the entire case. It may not and need not contain all the details. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may even miss the most important details in the narration. (State of Uttar Pradesh v. Naresh and others (supra)). Thus, not stating a particular fact is no reason to discard the testimony of the witness. Moreover, non- mentioning of the incident of 9 o'clock, may at best be said to be an omission, however, by no means can it be said to be an omission amounting to an important contradiction going to the root of the prosecution case. The findings recorded by the trial court, therefore, suffer from the vice of irrationality.
34. In State of Uttar Pradesh v. Naresh and others (supra), the Supreme Court has held that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition Page 30 of 34 R/CR.A/1190/1994 JUDGMENT such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars, that is, go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. In the facts of the present case, the omissions noted hereinabove are not significant in nature and do not amount to contradictions so as to affect the prosecution case.
35. One more reason assigned by the trial court for not accepting the testimony of the witness is that the only independent witness has not supported the prosecution case and no other independent witnesses have been examined. It may be noted that PW-4 Abhesingbhai Ravjibhai Parmar, the only independent witness examined by the prosecution, was a relative of one of the accused persons and hence, he has not supported the prosecution case. Similarly, the witnesses who had come to the scene of offence after the incident were all Page 31 of 34 R/CR.A/1190/1994 JUDGMENT residents of the nearby houses. Some of the accused were also residing in the vicinity, and hence, it is quite natural that such witnesses would be reluctant to come forward to depose against their neighbours. The Supreme Court in State of Uttar Pradesh v. Naresh and others (supra) has in a case akin to the present case, held that, it may be difficult for the prosecution to procure an independent witness wherein the accused had killed one person at the spot and seriously injured the other. The independent witness may not muster the courage to come forward and depose against such accused.
36. Having minutely examined the testimony of PW-2, Chhatrasinh, the court finds that the marginal variations in the statements are merely elaborations of the statement made by him earlier. No material contradictions have been brought on record to impeach the credibility of the witness. The testimony of the witness in the court is consistent with the version given by him before the police. Under the circumstances, the credibility of the said witness is not impeachable and inspires confidence. The trial court was, therefore, not justified in discarding the testimony of this witness.
37. One of the grounds stated by the trial court in discarding the evidence of the witnesses is that the muddamal weapons do not have any bloodstains on them, and no opinion of the Forensic Science Laboratory has been obtained. From the testimony of the panch witnesses and the panchnamas, it is evident that the weapons have been recovered one week after the incident. In these the circumstances, it is not surprising that no bloodstains were found on such weapons.
Page 32 of 34R/CR.A/1190/1994 JUDGMENT
38. The present case is required to be examined in the totality of the circumstances narrated hereinabove and in the light of the aforesaid legal propositions.
39. In view of the aforesaid analysis of facts and evidence on record, in the opinion of this court, the inescapable conclusion is that the trial court has gravely erred in discarding the evidence of PW-2, Chhatrasinh. The trial court has made too much of insignificant discrepancies, which were made the basis for acquittal. This court is of the considered opinion that through the testimony of PW-2 Chhatrasinh and the other corroborative evidence as discussed hereinabove, the prosecution has duly proved that, in view of the land disputes between the parties, the accused viz. the respondent No.2 - Punambhai Punjabhai Parmar, respondent No.3 - Maganbhai Muljibhai Parmar and respondent No.4 - Shivabhai Fulabhai Parmar, in furtherance of the common intention of all the accused, waylaid the deceased and the complainant while they were on their way to lodge a complaint at Nadiad and assaulted the deceased with deadly weapons and caused grievous injuries resulting in his death and thereby committed the offence punishable under section 302 read with section 34 of the Indian Penal Code. This court is therefore, of the considered opinion that the findings recorded by the trial court after appreciating the evidence on record are perverse and irrational and cannot be sustained in the eye of law.
40. In the result, the appeal is allowed. The judgment and order of acquittal dated 18th August, 1994 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No.296 of 1993, to the extent the court has acquitted the Page 33 of 34 R/CR.A/1190/1994 JUDGMENT respondents No.2, 3 and 4 herein, is hereby quashed and set aside. The respondent No.2 - Punambhai Punjabhai Parmar, respondent No.3 - Maganbhai Muljibhai Parmar and respondent No.4 - Shivabhai Fulabhai Parmar are hereby convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code.
41. The court would now be required to give an opportunity of hearing to the respondent No.2 - Punambhai Punjabhai Parmar, respondent No.3 - Maganbhai Muljibhai Parmar and respondent No.4 - Shivabhai Fulabhai Parmar, on the question of sentence. The case is, therefore, adjourned to 20th March, 2018.
42. Accordingly, Issue Notice to the above respondents returnable on 20th March, 2018. If on that day, they fail to appear before this court, the learned advocate for the respondents shall be heard on the question of sentence.
(HARSHA DEVANI, J.) (A.S. SUPEHIA, J.) parmar* Page 34 of 34