Gujarat High Court
Narsinhbhai Talshajibhai Mali & Ors vs State Of Gujarat on 31 August, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.A/319/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 319 of 2012
with
CRIMINAL APPEAL NO. 326 of 2012
with
CRIMINAL APPEAL NO. 404 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== NARSINHBHAI TALSHAJIBHAI MALI & ORS. ....Appellant(s) Versus STATE OF GUJARAT.... Respondent(s) ========================================================== Appearance:
MR PRATIK B BAROT, ADVOCATE FOR MR POPATJI H SOLANKI, ADVOCATE for Appellants No.1 - 5 (In Cr.A. 319/2012) MR UMESH A. TRIVEDI, ADVOCATE FOR THE APPELLANT (In Cr.A.326/2012) MR MAHENDRA U. VORA, ADVOCATE FOR THE APPELLANT (In Cr.A.404/2012) MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR JK SHAH, ADDITIONAL PUBLIC PROSECUTOR for the Respondent - State (In all Criminal Appeals) Page 1 of 189 HC-NIC Page 1 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI and HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 31/08/2017 COMMON C.A.V. JUDGMENT (PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. These three Criminal Appeals under Section 374 of the Code of Criminal Procedure, 1973 ("the Code") are directed against the common judgment and order dated 29.02.2012, passed by the learned 5th (Adhoc) Additional Sessions Judge, Deesa, in Sessions Case No.119 of 2008, whereby the appellants have been convicted for offences punishable under Sections 302, 307, 323, 324, 504 read with Sections 147, 148, 149 and 34 of the Indian Penal Code, 1860 ("the IPC"). Criminal Appeal No.319/2012 has been preferred by original accused Nos.1 to 5 whereas Criminal Appeal No.404/2012 has been preferred by original accused No.6. Criminal Appeal No.326/2012 has been filed by original accused No.7. As all the appellants before this Court have been convicted and sentenced to suffer life imprisonment by a common Page 2 of 189 HC-NIC Page 2 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT judgment, these appeals were heard and are being decided together.
2. It is stated before the Court by learned counsel for appellants Nos.1 to 5 (Criminal Appeal No.319/2012) that appellant accused Nos.1 and 2 are absconding. Learned counsel for the said appellants is present and is ready to proceed with the appeal. Therefore, following the enunciation of law laid down by the Division Bench of this Court in Niraj Devnarayan Shukla & Ors. v. State of Gujarat - 2015(3) GLR 2442, which, in turn, has taken into consideration several judgments of the Supreme Court, we proceed with the hearing of the appeal against absconding appellants Nos.1 and 2 in view of the ratio laid down, which is as below:
"16. In view of the ratio laid down by the Apex Court, we are of the opinion that the High Court while dealing with a conviction appeal wherein convict/ advocate is/are not available, following procedure is required to be considered at the time of final hearing:Page 3 of 189
HC-NIC Page 3 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
(i) If the Advocate appearing for the appellant convict is present and is ready to proceed with the appeal, the Court has to decide the same on merits and reasoned judgement is to be delivered even if the convict is absconding.
It is needless to say that the convict should always be subjected to consequences of his abscondance..."
3. The case of the prosecution is based upon the complaint dated 16.05.2008 (Exhibit 11) made by Rajusinh Kesarsinh Padhiyar Rajput (PW2), brother of deceased Naransinh Kesarsinh Padhiyar Rajput, pursuant to which an FIR, being C.R.I No.24/2008 was lodged in Panthawada Police Station for offences punishable under Sections 302, 307, 323, 324, 504, 147, 148, 149 and 34 of the Code. It is the case of the prosecution that on 16.05.2008, at about 7:00 pm, the first informant was standing on the road at Odhva village near the place where three roads go to Shergadh. The deceased and his other brother Narpatsinh Kesarsinh Padhiyar Rajput (PW4) came there in Page 4 of 189 HC-NIC Page 4 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT a vehicle known locally as as "Jeep Dalu"
(hereinafter referred to as "Jeep") which stopped at Odhva Bus Stand near the three roads going to Shergadh. The deceased and PW4 alighted from the jeep. At that point of time, Narshibhai Talsaji Mali (A1), Ranchhodbhai Narshibhai Mali (A2), Nagaji Talsaji Mali (A
3), Gulabji Pavaji Koli (A6), Masraji Talshaji Mali (A4), Miraben, w/o. Narshiji Talsaji Mali (A5) (wife of A1), and Shankaraji Nathuji Rajput (A7), all being part of an unlawful assembly, were standing near Odhva Bus Stand with pipes and sticks in their hands. A1 had a knife in his hand. A1 asked the deceased why was he coming frequently to his house to ask for the money lent by him and that he should not come every day to recover the money.
A1 started to hurl filthy abuses and the deceased asked him to stop abusing him. Upon this, Narshibhai Talsaji Mali (A1) inflicted a knife blow on the chest of the deceased. The first informant and PW4 came running to save the deceased when Ranchhodbhai Narshibhai Mali Page 5 of 189 HC-NIC Page 5 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT (A2) and Gulabji Ravaji Koli (A4) started giving blows with iron pipes to the deceased, Miraben Narshiji Talsaji Mali, wife of A1, also gave blows with a stick to the deceased. As per the case of the prosecution, the deceased died as a result of the knife wound inflicted by A1 and A4 sustained injuries on the right hand thumb and finger, by the knife. It is further the case of the prosecution that both the deceased and A4 were indiscriminately beaten by all the accused.
4. Pursuant to the registration of the FIR, the investigation commenced. The Investigating Officer collected evidence against the accused persons and took the statements of witnesses. As sufficient evidence was found against them, all the accused persons came to be arrested on 29.02.2008. A Chargesheet was filed in the Court of learned Judicial Magistrate, First Class, Dhanera. However, since the offences were Sessions triable, the case was committed to the Sessions Court as per the provisions of Section 209 of the Code and came to be Page 6 of 189 HC-NIC Page 6 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT registered as Sessions Case No.119/2008. Thereafter, the Charge came to be framed vide Ex.7. The Charge was read over to the accused persons who denied their guilt and claimed to be tried. After a fullfledged Trial, the Sessions Court passed the judgment and order under challenge, whereby the appellants herein have been held guilty for the offences punishable mentioned hereinabove and have all been sentenced to undergo life imprisonment for the offences punishable under Sections 302 and 307 read with Sections 147, 148, 149 and 34 of the IPC. They have further been sentenced to undergo three years' rigorous imprisonment for the offences punishable under Sections 323, 324, 504, 147, 148, 149 and 34 of the IPC. No penalty has been imposed upon the appellants and all sentences have been ordered to run concurrently.
5. In support of its case, the prosecution has examined fifteen witnesses and produced documentary evidence. The defence has put up its case pursuant to the further statement of Page 7 of 189 HC-NIC Page 7 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the accused persons and has examined two witnesses and produced certain documents. After framing points for determination, the Sessions Court accepted the case of the prosecution and passed the abovementioned judgment, aggrieved by which the appellants - original accused are before this Court.
6. It would be fruitful to advert to the salient features of the oral and documentary evidence led by the prosecution which would throw light on the issues arising for determination in the present appeals.
7. Dr.Shrirambhai Nagarbhai Patel, who has performed the postmortem of the deceased, has been examined as PW1 at Ex.16. He has stated that on 17.05.2008, at about 8:30 am, he was on duty at the General Hospital, Palanpur, from 8:30 am to 2:00 pm. At about 9:30 am, the body of the deceased was brought for postmortem with the Yadi of the Police Sub Inspector and the inquest form for performing the autopsy. The postmortem of the body was commenced at Page 8 of 189 HC-NIC Page 8 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT 10:15 am and was completed at 11:50 am. It was stated in the accompanying papers that the deceased passed away on 16.05.2008 at about 7:00 pm due to a stab wound on his chest. Upon examination, this witness found the body to be that of a nineteen year old man. The injuries sustained by the deceased have been described in detail by this witness, as per the description given in Column No.17 of the post mortem report prepared by him at Ex.18. The injuries sustained by the deceased as per the postmortem report are as below:
"Column No.17: External injuries (1) A stab wound present over chest (lt.) side - middle part near (lt.) nipple about 4.0 cm, medial and 2.0 cm below the level of (lt.) nipple in 5th I.C. Space. Vertical and slightly oblique in direction - upper end medially. Size 2.6 cms x 1.5 cms traceable deeply. Margins are sharp and averted, cutting deep tissues. Clotted blood present in and around the wound. Direction of wound is upwards, medially and inside posterior.
6th rib (lt) is cut (cartilage area) vertically at lower end wound in upper part. (2) grazed abrasion present over (lt.) knee joint middle part one 2.5 cms x 1.0 cms c. dry clotted blood."
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8. This witness has stated that the cause of death of the deceased is as given in the postmortem report, which is "cardiogenic shock due to injuries to vital organ heart received by stab injury on a chest (lt.) side". This witness has supported the postmortem report insofar as the injuries on the body of the deceased and the cause of death are concerned.
9. This witness has been subjected to extensive crossexamination on behalf of accused Nos.1 to 6 wherein he has stated that it is not true that injury No.1 sustained by the deceased could not have been caused by the knife which is the weapon of offence as shown to him. He has, however, stated that injury No.2 could have been caused due to a fall after sustaining injury No.1. This witness has stated in cross examination that if blows with weapons such as pipes and sticks are inflicted, there would be weal marks on the body and it is possible that blows with pipes would result in a fracture as well. He has reiterated that if blows with pipes and sticks are given, there is a Page 10 of 189 HC-NIC Page 10 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT possibility of fracture and internal injuries being caused. He has stated that apart from injuries Nos.1 and 2, no other injuries are found to be present on the body of the deceased. Had the deceased been beaten indiscriminately with pipes and sticks, such injury marks would have been present on his body.
10. In crossexamination at the behest of accused No.7, this witness has stated that it is true that no injury marks resulting from stick blows were visible on the body of the deceased.
11. The first informant, Rajsinh Kesarsinh Padhiyar, brother of the deceased and the injured witness, has been examined as PW2 at Ex.20. His testimony is somewhat significant, therefore, would be referred to in detail. This witness states that the incident took place about twelve months prior to his deposition. On the day of the incident, at about 7:00 pm, he was standing below the road near Odhva bus stand. At that time, accused Nos.1, 2, 3, 5, 6, Page 11 of 189 HC-NIC Page 11 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT 4 and 7 were also standing there. The deceased and PW4 were coming in a jeep from Jegol towards Odhva village. When they alighted from the jeep, accused No.1 inflicted a blow with a knife on the left side of the chest of the deceased. The other accused had sticks and pipes with them. Accused No.4 had a pipe and the other accused had sticks. Accused No.1 had a knife. PW4 had lent money to accused No.1 who told the deceased why he was constantly asking for the return of the money, which led to an altercation. At that point of time, accused No.1 tried to inflict a second knife blow on the deceased but PW4 came in between and sustained knife injuries. This witness further states that PW4 was mercilessly beaten by the other accused with sticks and pipes and sustained injuries on his hands, legs and waist. According to this witness, when the incident took place, he was standing at a distance of 30 to 40 feet from the spot. He did not have knowledge that such an incident would take place. He asserts that he has seen the Page 12 of 189 HC-NIC Page 12 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT incident taking place. He then states that he came running and tried to intervene. This witness states that he started shouting for help, in response to which Somaji Ranchhodbhai Patel, Kacharaji Magnaji Rajput and other people came running. The accused then fled away. The deceased was bleeding and was taken by this witness in a jeep to Palanpur Civil Hospital, where the Doctor on duty declared him dead. PW4, the injured witness, was admitted to the same hospital for treatment. This witness states that the Doctor at the Civil Hospital, Palanpur, told him to register a complaint. This witness, therefore, went to the Police Station, Palanpur, and gave the complaint. He has identified the complaint as the one given by him under his signature at Ex.21. He has identified the accused persons in the Court.
12. In crossexamination at the behest of accused Nos.1 to 6, this witness states that it is true that both his brothers, the deceased and PW4, came in a jeep and the accused started beating Page 13 of 189 HC-NIC Page 13 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT them mercilessly, but his brothers did not put up any defence. He is unaware of the name of the person in whose jeep his brothers came. He further states that before his brothers had alighted from the jeep, he had gone to the shop of Khushalji Chhogaji to purchase a "Beedi". He states that he arrived at the spot ten minutes before the deceased and PW4 arrived and was standing there, smoking a "Beedi". This witness further states that even before the deceased and PW4 arrived in the jeep, the accused were standing there with weapons. He had seen the accused armed with weapons standing there. He further states that he was not aware of the fact that his brothers would come there in a jeep or that the accused were standing there in preparation to kill the deceased. This witness states in crossexamination that the accused had enmity with the deceased. When he saw the accused standing there armed with weapons, he had no idea that they were standing there in order to kill the deceased. According to this witness, the accused were aware that the Page 14 of 189 HC-NIC Page 14 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT deceased and PW4 were to come there in a jeep.
13. Further, in crossexamination, this witness states that his house is located behind the "Patel Vaas" of village Odhva. On the day of the incident, he had come to the spot to purchase "Beedis". He states that between his house and the place of incident, there are six to seven shops selling "Paan" and "Beedi". This witness then turns around and states, in cross examination that at that point of time, he was going to his field as the electric power had commenced and he was going to water his fields. This witness admits that in order to go to his field, he has to go by the road from "Brahmanvaas", which is a shorter road. The road which he chose is a longer road. This witness then states that the road he took is a shorter one. He states that it takes him about half an hour to reach his field from his house. He states that his field is located in the northern direction from his house. He admits that the place of incident is on the eastern side, whereas the road through "Brahmanvaas" is Page 15 of 189 HC-NIC Page 15 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT towards the north.
14. This witness admits that accused No.2 is the son of accused No.1 and accused Nos.3 and 4 are brothers of accused No.1 and accused No.5 is the wife of accused No.1. He further states that accused No.6 is not related to accused Nos.1 to 5 and belongs to a different caste and community. Accused No.7 belongs to the same community as the deceased but has nothing to do with accused Nos.1 to 6. This witness states that it is true that the deceased had given a complaint against Miraben (A6), Nagaji Mashraji (A3) and one Ashok and Vimlaben on 14.08.2007 but he does not know whether it was found to be a false complaint. He then admits that there is a road between the field of accused No.6 and his own field. His field is towards the east whereas the field of accused No.6 is towards the west. He denies the suggestion that there was an altercation between him and accused No.6 due to wire fencing with current done by him on the boundary of his field, which resulted in the Page 16 of 189 HC-NIC Page 16 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT death of a Neelgai. This witness admits that he had taken the field of one Mohanbhai Bhagwanbhai for cultivation on payment basis, which field has been purchased by accused No.6. This witness admits that due to this reason, he has a grievance against accused No.6. This witness denies the suggestion that Jyotsnaben, daughter of accused No.1 had made a complaint against the deceased and his other brothers on 27.07.2007. He then states that the complaint is a false one. This witness further denies the suggestion that the village people had made a complaint against the deceased and his other brothers on 02.07.2006. He then admits that he had to take bail pursuant to the said complaint.
15. With regard to the incident, this witness asserts that it is not true that he was not present at the spot or that a boy came to call him from his house informing him that the deceased was lying near the jeep. He further denies that PW4 had come to call him. This witness states that he does not recognise Page 17 of 189 HC-NIC Page 17 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Vasantiben, the daughter of accused No.1 and he has not seen her at the place of incident. This witness further denies that he recognises Ganpatbhai Kasturbhai Mali. He states that he does not know Prakashbhai, son of accused No.1. He denies the suggestion that Prakashbhai, accused No.1 and Ganpatbhai Kasturji and Vasantiben were going through the fields to Odhva Bus Stand when the deceased tried to molest Vasantiben, which led to a fight. He denies the suggestion that during the said fight, the deceased took out a weapon by which he sustained injuries during the ensuing scuffle. This witness denies the suggestion that none of the accused were present at the spot or that they have not participated in the incident. He further denies the suggestion that all the people towards whom the deceased and his brothers were inimical have been roped in by filing a false complaint.
16. This witness has been subjected to further intensive crossexamination at the behest of accused No.7 wherein he admits that accused Page 18 of 189 HC-NIC Page 18 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Nos.1 to 5 and 7 belong to different castes and accused No.6 belongs to another caste. He states that accused Nos.15 and accused Nos.6 and 7 live in different localities. The lands of accused Nos.1 to 5 and accused No.7 are separate and their houses are located in different areas. This witness admits in cross examination that two years before the incident took place, accused No.7 had made a complaint against him and the deceased at Panthawadi Police Station, due to which they had to obtain bail. He states that he and his brothers had also filed a complaint against accused No.7 and from that time, there was enmity between him and his brothers and accused No.7. This witness further states that there are several cabins (shops) near the area where the incident took place and the office of Odhva Gram Panchayat is also located nearby. Several shops are located there and people are constantly passing by. This witness denies the suggestion that he has roped in accused No.7 due to previous enmity with him or that accused No.7 was not present Page 19 of 189 HC-NIC Page 19 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT at the spot with a weapon. He further denies the suggestion that he has filed the complaint at the behest of his brothers and has introduced the name of accused No.7 at a later stage. This witness admits that in the complaint dated 14.08.2007, he had not named accused No.7 but states that it is not true that accused No.7 does not know anything regarding the incident or that he is being falsely implicated.
17. PW3 is Dr.Haresh Narayanbhai Gadhavi, the Medical Officer at the General Hospital, Palanpur, who treated PW4, the injured witness and noted down the medical history given by the said injured witness. He has deposed at Ex.22. The Medical Officer states that on 16.05.2008, he was on duty at the General Hospital, Palanpur, when Narpatsinh Kesarsinh Rajput (PW
4) was brought to him for treatment. PW4 told him that he was assaulted with an unknown weapon by Ganpat Kastur Mali, at Odhva Bus Stand. He went to save his brother and was injured. Upon examination, PW4 was found to Page 20 of 189 HC-NIC Page 20 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT have sustained two injuries as below:
"(1) I/W at left leg sole at head - 11/2 c.m * 1/3 c.m skin cut bleeding from around (2) I/W at right hand between thumb and index finger at lower part 11/2 * ½ c.m skin cut"
Both the above injuries were found to be simple in nature and PW4 was treated as an outdoor patient. Both the injuries could have been caused with a sharp weapon but were superficial. The said injuries would heal within seven to eight days if no other complications set in. This witness states that he has issued the certificate regarding the injuries sustained by PW4, which he has proved as Ex.23.
18. In crossexamination on behalf of accused Nos.1 to 6, this witness reiterates that both the injuries sustained by PW4 were superficial and simple in nature. He states that a person walking barefoot could sustain an injury such as injury No.1. He denies the suggestion that if a person was trying to take away a weapon from the injured witness, an injury such as Page 21 of 189 HC-NIC Page 21 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT injury No.2 could be caused. He states that if the injured witness tries to take a weapon from another, such an injury may be caused. This witness categorically states that the medical history recorded by him has been given by the injured witness to him. He denies the suggestion that if the weapon falls down and the injured witness steps on it, such an injury would be caused. This witness clearly states that in the history narrated by the injured witness before him, the said witness has not specified the nature of the weapon with which he sustained injuries. The injured witness has stated that when he was going to save his brother, he was assaulted.
19. This Doctor was put to crossexamination at the behest of accused No.7 and he states that PW4 came to him at about 9:00 pm without any Police Yadi. He states that PW4 stated before him that the incident took place at the Odhva Bus Stand and in the history given by the injured witness, no other person has been named. Page 22 of 189 HC-NIC Page 22 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
20. The injury certificate of PW4 issued by Dr.Hareshbhai Narayanbhai Gadhavi is at Ex.23. It is dated 16.05.2008. It is recorded therein that at 8:45 pm, Narpatsinh Kesharsinh Rajput came without a Police Yadi, with a history of assault. He has examined him and found the injuries described hereinabove. The history given by the injured witness is stated thus in the certificate:
"H/o assault by unknown substance. Ganpat Kastur Mali I was assaulted when I tried to save my brother"
21. The next important prosecution witness is PW4, Narpatsinh Kesarsinh Rajput, who is the injured witness. He has testified at Ex.24. This witness states that the incident took place a year and one month before he gave his testimony. On the day of the incident, he and the deceased were coming from Jegol to Odhva village in a jeep at about 6:30 pm. All the seven accused were standing there. Accused No.1 had a knife, accused No.3 had a stick, accused No.4 had a stick, accused No.2 also had a Page 23 of 189 HC-NIC Page 23 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT weapon, accused No.7 had a stick, accused No.6 had an iron pipe and accused No.5 was also present. The accused started abusing him and the deceased and asked why they came every day to demand the return of the money lent by them. On being told not to hurl abuses, all the accused persons cordoned off the deceased and PW4 and started beating them indiscriminately. accused No.1 gave a knife blow on the left side of the chest of the deceased. This witness states that when he went to save the deceased, he was surrounded by the accused. Accused No.1 inflicted a knife injury between his right hand thumb and finger. Thereafter, this witness fell down and accused No.1 gave a blow on the sole of his left foot. This witness states that all the accused inflicted profuse stick blows on his whole body including his back, hands and head. He further states that all the accused also gave profuse and indiscriminate blows to the deceased with sticks and iron pipes. When he started to scream for help, one Ratnaji, Somaji, Ranchhodbhai, and Shakraji came there. Page 24 of 189 HC-NIC Page 24 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT PW2 Rajuji, his brother, also came there. Rajuji took the deceased and injured witness to the Civil Hospital, Palanpur, in a jeep. The Doctor declared the deceased dead upon arrival. PW2, therefore, lodged a complaint. According to this witness, the accused had no intention of returning the money which was demanded by the deceased frequently and which was the cause for the incident. This witness has identified the knife and the sticks shown to him as being the ones used by the accused.
22. This witness was subjected to intensive cross examination on behalf of accused Nos.1 to 6. he has stated that he does not know Ganpat, son of Kasturji. He denies the suggestion that he had taken Rs.50,000/ from accused No.1 and his brothers to settle a land case by using his influence and contacts but has not settled the same. This witness states that he does not know the owner of the jeep in which he and the deceased had come. He also does not know the name of the driver. There were four other passengers in the jeep but he does not know to Page 25 of 189 HC-NIC Page 25 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT which village they belonged. The incident took place immediately upon their alighting from the jeep and all the accused persons started beating him and the deceased immediately. He reiterates that the accused gave blows to the deceased and to this witness all over their bodies.
23. This witness admits that prior to the lending of money there were good relations between them and the accused. This witness states that he does not know Vasantiben or Prakash, who are the daughter and son of accused No.1. At this stage, he denies that he does not know Ganpat Keshar Mali, meaning thereby, that he admits to knowing him. He then turns around and states that he does not know these three people. He states that the deceased was unmarried. He denies the suggestion that at the time of the incident, Vasantiben, Ganpat and Prakash were going through the fields towards Odhva Bus Station.
24. PW4 denies the suggestion that the incident Page 26 of 189 HC-NIC Page 26 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT took place because the deceased tried to molest Vasantiben, daughter of accused No.1. Ganpat and Prakash intervened and the deceased took out a weapon which he had kept with him. He denies that the deceased was trying to inflict an injury with his weapon on Prakash and Ganpat who had intervened and in the scuffle that followed the deceased was injured and this witness also sustained injuries on his hand and foot. PW4 states that he was taken to Palanpur Hospital but denies having given any history to the Doctor.
25. PW4 further denies that the accused were not present at the time of the incident. He admits that accused Nos.1 to 5 are related. He denies the suggestion that Jyotsnaben, daughter of accused No.1, had made a complaint against himself, his brothers, the deceased and his father on 03.08.2007. This witness then turns around and states that the complaint was made against him and not against the deceased and his father. This witness further denies the suggestion that the villagers of Odhva village Page 27 of 189 HC-NIC Page 27 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT had made a complaint against him, his father and his other brothers at Panthawadi Police Station, stating that they are headstrong people with a criminal bent of mind. This witness then admits that he was granted bail. This witness accepts that the accused and one Vimlaben Ashokbhai Lavjibhai Brahman had made a complaint but does not know whether it was found to be correct. He admits that he had to spend three days in jail due to the complaint filed by accused No.1 against him. He denies that there was a case against him regarding the midday meal scheme or that he had anything to do with the said scheme.
26. When faced with the contradictions between his deposition and the statement given by him before the police, this witness denies his earlier statements. He accepts that there was enmity between him and accused No.1 due to money.
27. In his crossexamination on behalf of accused No.7, this witness states that there was enmity Page 28 of 189 HC-NIC Page 28 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT between him and accused No.1 regarding money matters. On 02.07.2006, that is, two years before the incident, accused No.7 had filed a compliant against this witness and his three brothers at Panthawadi Police Station. This witness denies the suggestion that accused No.7 had made a serious complaint against him and his brothers regarding molestation of girls and women of the village. However, this witness admits that he and his brothers had to take bail pursuant to this complaint and as a counterblast, he had filed a compliant against accused No.7. This witness states that accused No.7 lives apart from the other accused and his agricultural lands are also separate.
28. PW4 states that at the time of the incident, many people were passing by and shopkeepers were also present. The first informant was nearby and came immediately when the incident took place. When he had made a complaint a year prior, he had not mentioned the name of accused No.7. This witness denies that there were money dealings between him and accused No.7 or that Page 29 of 189 HC-NIC Page 29 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT accused No.7 had come to him asking for the return of his money. He denies that he had any enmity with accused No.7 and has implicated him in an indirect way. This witness then states that it is true that at the time when the incident took place, accused No.7 was not present.
29. The next important eyewitness is PW6, Mangalsing Samuji Rajput. He is the Panch witness of the recovery of the knife which is the weapon of offence. His deposition is at Ex.29. This witness has stated that on 21.05.2008, Police personnel from Panthawadi Police Station had called him and the other Panch named Nathsing Devda and informed them that a Panchnama was to be drawn regrading the offence that had taken place at Odhva. After the Preliminary Panchnama was prepared, his signature and that of the other Panch witness was taken which this witness has identified.
30. In the Panchnama regarding the recovery of the knife, it is stated that accused No.1 stated Page 30 of 189 HC-NIC Page 30 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT before the Panch witnesses that he wants to show the knife used by him for committing the offence, which he has hidden in a cupboard in his house located in the field. A vivid description regarding the manner in which the Panch witnesses, along with Police personnel went in the Police vehicle to the house of accused No.1, is given in the Panchnama, including the names of the villages crossed by them. It is stated that first, they went via Zaan village to the banks of Sipu river, then onwards to Rajkot village towards Odhva village. They crossed Patelvaas, Odhva Maalivaas and reached Shergadh threeroads. accused No.1 gestured that the vehicle should be taken towards Kamalpuria road. About 200 meters from Shergadh three roads, there was a Nalia (ditch) in which accused No.1 gestured the vehicle to be taken. About 250 meters ahead, accused No.1 made a sign for the vehicle to be stopped. Accused No.1, the Panch witnesses and the Police personnel alighted from the vehicle. On the right hand side, there Page 31 of 189 HC-NIC Page 31 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT was an iron gate. Entering from this gate after about twentyfive meters, towards the eastern side, there were two houses next to each other. Both the houses had iron doors and tiled roofs. Accused No.1 stated that both the houses belonged to him. There was a `Deri' made of bricks on the northern side near the Neem tree. The accused took out the key hidden under the brick of the Deri and opened the lock of the first house on the left hand side where the knife was hidden. On entering the house, they found a wall and a cupboard built into the wall. This cupboard had no doors. Accused No.1 told them that there was a knife in the cupboard which he took out. This knife was made of iron and was without a sheath. One side of it was blunt and the other side was sharp. A wooden handle was attached to the knife with a nail. The house contained household articles such as beds, quilts, photographs etc. and agricultural implements, which were not seized. The knife was seized by the Police.
31. In crossexamination, this witness admits that Page 32 of 189 HC-NIC Page 32 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the deceased belongs to his community. He further admits that it is true that only after the knife was brought to the Police Station was his signature taken on the Panchnama in the Police Station itself. He denies that he does not know from where, and in what manner, the knife was recovered.
32. The Panchnama regarding the recovery of the knife is at Ex.30. In the said Panchnama, it is stated that accused No.1, who was in Police custody, identified himself and stated that the weapon used by him while committing the offence has been concealed by him in the cupboard of his house which is situated in the field and he wants to present the said knife. It is further stated that the Panch witnesses, accused No.1 and the Police personnel started off in a jeep. They passed Zaan village and reached Odhva. They went through Odhva Sardarvaas Odhva, Odhva Patelvaas and Odhva Maalivaas Naka near Shergadh three roads. At Kamalpuria road, accused No.1 gestured to stop the vehicle ahead of Shergadh three roads. Accused No.1 gave an Page 33 of 189 HC-NIC Page 33 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT indication that they should go towards the "Naalia" (ditch) at the side of road. About 150 meters into the Naalia, the vehicle was stopped by accused No.1. The Panch witness, Police personnel and accused No.1 alighted. On the right hand side, there was a wooden gate through which they entered. After about 25 meters there were two houses on the roadside towards the east with iron doors and tiled rooves. Accused No.1 stated that both the houses belonged to him. Both houses were locked. Accused No.1 went towards the northern side where, under a Neem tree, there was a `Deri' made of brick. He took out the key from under a brick in the `Deri' and opened the lock of the house where he had hidden the weapon of offence. It is further stated that upon entering the house, there was a cupboard in front, constructed into the wall, without a door. A knife was lying in the cupboard, which, accused No.1 informed, was the weapon of offence. On being taken out, it was seen that the knife was made of iron and was without a Page 34 of 189 HC-NIC Page 34 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT sheath. It was sharp on one side. It had a wooden handle fitted with a nail. This knife was put in a plastic bag by the Panch witnesses with slips containing their signatures.
33. The next witness who has some significance, is the Investigating Officer Dineshsinh Mahavirsinh Chauhan. He has been examined as PW15 at Ex.54. This witness states that when he was serving as Police Station Inspector at Panthawada Police Station on 16.05.2008, he received a telephone call from Palanpur Police Station regarding the incident. He registered the complaint given by PW2, brother of the deceased, started investigation and followed the necessary procedure regarding drawing up of the Inquest Panchnama and Panchnama of the scene of offence and recorded the statements of concerned witnesses. He states that a map of the scene of offence was prepared and accused Nos.1 and 2 were arrested on 20.05.2008. This witness further states that on 21.05.2008, accused Nos.3 and 4 were found. A Panchnama regarding the state of their person was Page 35 of 189 HC-NIC Page 35 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT prepared and the sticks used by them in the offence were taken into custody. Thereafter, on the same day, accused No.1, in the presence of Panch witness, stated that he would show they where he had hidden the knife which is the weapon of offence. Therefore, a Preliminary Panchnama of the recovery of the knife was drawn. Thereafter, as stated by accused No.1, in the presence of Panch witnesses, the knife was recovered from the cupboard in the house located in the field, which knife was taken out by accused No.1, regarding which a detailed Panchnama has been prepared which is at Ex.30. The Investigating Officer has identified his signature upon the said Panchnama. He has stated that the other accused were arrested thereafter. He states that upon gathering sufficient evidence against the accused, he filed the Chargesheet against them.
34. Upon crossexamination, the Investigating Officer has stated that it is true that the Certificate of injury regarding the injured witness was given on 16.05.2008 and the Page 36 of 189 HC-NIC Page 36 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT statement of the injured witness was taken on 17.05.2008 and 18.05.2008. This witness states that it is true that the injured witness has recorded in his medical history that Ganpat Kastur Mali had injured him with an unknown weapon when he had gone to save his brother. The Investigating Officer admits that in this case, Ganpat Kastur Mali has not been made an accused. He further states that he has not obtained any clarification regarding this aspect from accused No.1 or from the Medical Officer. He denies the suggestion that he has investigated only as per the case put up by the side of the complainant. He further denies that the statements recorded by him were not as per the say of the concerned witnesses.
35. The Investigating Officer has denied the suggestion that he has not recovered the weapon of offence from the accused persons in the presence of Panch witnesses. This witness states that it is true that the knife recovered by him is sharp on one end and blunt on the other. He states that it is true that he has Page 37 of 189 HC-NIC Page 37 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT not shown the knife to the Doctor who performed the postmortem or taken his opinion. He further states that it is true that he has not taken any opinion regarding the aspect whether the injured witness has sustained injuries from the weapon of offence recovered by him.
36. A further crossexamination of this witness on behalf of accused No.7 took place, during which he states that there are several shops and cabins near the place where the incident took place. The cabin of Sureshkumar Mali is opposite the spot of incident. The bus stand going towards Shergadh is also nearby. That he had not inquired as to whether accused No.7 was present at the spot at the time of the incident, or not. This witness further denies the suggestion that the villagers had made a compliant against the deceased.
37. PW7, Bagdabhai Ukaji Darji, is the Panch witness of the recovery of sticks at the behest of accused Nos.3 and 4. He has turned hostile. The Panchnama at Ex.33 regarding the recovery Page 38 of 189 HC-NIC Page 38 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT of the sticks from accused Nos.3 and 4 has not been proved. Similarly, PW8, Hemtabhai Lakhmanbhai Chaudhary, who is the Panch witness of the Panchnama of the Scene of Offence and Panchnama of Recovery of Weapons from the houses of the accused, has also not supported the case of the prosecution and has been declared hostile. The Panchnama of the Scene of Offence at Ex.37 and the Panchnama regarding the recovery of weapons from the houses of accused at Ex.40, are not proved. PW9, Arjanbhai Kantibhai Thakore, is the Panch witness regarding the handing over of the clothes of the deceased to the Police after the postmortem. This witness has also turned hostile, therefore, this Panchnama at Ex.42 is also not proved.
38. PW12, Dashrathsing Ranjitsing Dabhi, is the Panch witness of the Inquest Panchnama. Though this witness has not been declared hostile, however, he has stated in his crossexamination that he has appended his signature on a previously prepared Panchnama. PW13, Popatbhai Page 39 of 189 HC-NIC Page 39 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Mohanbhai Parmar, is the Panch witness of the recovery of the iron pipes at the behest of accused Nos.6 and 7. He has not supported the case of the prosecution and has turned hostile. The Panchnama regarding the recovery of the iron pipes from accused Nos.6 and 7 at Ex.51, therefore, has not been proved.
39. Exhibit 59 is the Panchnama of the physical verification of accused Nos.1 and 2. This Panchnama is dated 20.05.2008. The two Panch witnesses of this Panchnama have not been examined. It is stated in the said Panchnama that accused No.1 told the Panch witnesses that the clothes he was wearing that the day when the Panchnama was drawn, that is on 20.05.2008, were the same ones he was wearing when the incident took place on 16.05.2008. It is stated in the Panchnama that accused No.1 was wearing a light blue shirt and a dark blue pant and there were no injury marks on either of his hands. Neither were any injury marks found on his back, legs or face. On his personal search, nothing was found. Accused No.2 was found to be Page 40 of 189 HC-NIC Page 40 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT wearing a white shirt with a design on it and black pant with a light design on it. There were no injury marks on his body and nothing incriminating was found during his personal search. It is stated that nothing was seized from him. Accused No.2 is also stated to have told the Panch witnesses that the clothes he was wearing on that day were the same as those worn by him on the day of the incident. It is stated in the said Panchnama that on examining the clothes of both the accused persons, no reddish marks, similar to blood, were found.
40. In the Serological Report, the shirt and pant of the deceased were stated to contain human blood of `O' Group, which is stated to be the blood group of the deceased. Insofar as the knife is concerned, it was found to have human blood of an undetermined group. The pant worn by accused No.1 is found to have human blood of `O' Group.
41. The above, in a nutshell, is the important oral and documentary evidence led by the prosecution.
Page 41 of 189 HC-NIC Page 41 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
42. The defence has put up a parallel story by way of further statement of accused Nos.1 to 6, which is that, on the day of the incident, Prakash (DW1), son of accused No.1 and Vasantiben, daughter of the said accused, were going towards the village dairy on a bicycle for the purpose of filling milk. They were intercepted by the deceased, who tried to outrage the modesty of Vasantiben. On account of this, Vasantiben screamed and a person named Ganpatji Kasturji Mali, along with Prakash, intervened to rescue Vasantiben from the clutches of the deceased. At that point of time, the deceased took out a knife from his coat. When he was in the process of inflicting a knife blow to Prakash, PW4, brother of the deceased, intervened. A scuffle took place during which the deceased sustained an injury. PW4, in the process of getting hold of the knife in the hands of the deceased, also sustained a knife injury on his right hand thumb and index finger. The knife fell to the ground and PW4 sustained an injury on the sole Page 42 of 189 HC-NIC Page 42 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT of his foot with the knife. Prakash and Vasantiben then left the bicycle and the milk can on the spot and ran away. A ten litre milk can and a bicycle were found on the spot.
43. In support of this version, the defence has examined two witnesses. The first is DW1, Prakashbhai Narsinhbhai Mali, son of accused No.1, who has deposed at Ex.69. He has stated that on 16.05.2008, at about 7:00 pm, he and his elder sister Vasantiben, were going towards the dairy to fill milk. They had a twelve litre milkcan and were going on a bicycle. Vasantiben got off the bicycle near the Nalia (ditch). The deceased, who was standing there, saw Vasantiben and tried to molest her. Vasantiben started screaming one Ganpatji Kasturji Mali and this witness ran to save Vasantiben. The deceased took out a knife from his coat and tried to inflict injuries with it upon DW1. Then PW4, brother of the deceased came there and a scuffle took place during which the knife fell down from the hand of the deceased. In the process, PW4 got injured Page 43 of 189 HC-NIC Page 43 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT between his right hand thumb and finger. When the knife fell down, PW4 got injured on the sole of his foot with the blade. Thereafter, this witness and Vasantiben left the cycle and the milk can on the spot and went away.
44. In crossexamination, this witness states that when the incident took place, none of the accused persons, including his father and uncle, were present. Somabhai Ranchhodbhai Muvadia was also not present. He further states that PW4 had taken a loan in which he had made his uncle, accused No.3, a guarantor. He was not repaying the loan, therefore, accused No.3 had issued a notice to PW4. He further states that his other sister, Jyotsnaben, as well as the other villagers, had also made complaints in Panthawadi Police Station against the deceased. This witness denies that his father, accused No.1, and his mother, accused No.6, owed any money to the deceased or that the deceased used to frequently come for the recovery of such money. In crossexamination at the behest of the prosecution, this witness Page 44 of 189 HC-NIC Page 44 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT reiterates that the deceased had tried to molest his sister on the day of the incident and the incident took place near the shop of Kapurji Chamnaji. No complaint was recorded by the Police regarding the alleged molestation, though he had informed the Police.
45. DW2 is Jyotsnaben Narsinhbhai Mali, daughter of accused No.1, whose deposition is found at Ex.73. She has stated that she had made a complaint against the deceased, PW4, PW2 and their father. She has produced the complaint and identified her signature thereupon.
46. After appreciation and evaluation of the above oral and documentary evidence, the Trial Court found that the offence under Section 302, read with Sections 147, 148, 149, and 34 of the IPC stands proved beyond reasonable doubt against all the appellants.
47. In the conspectus of the above factual and evidentiary background, learned counsel for the respective parties have advanced detailed oral arguments and have also submitted written Page 45 of 189 HC-NIC Page 45 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT submissions.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
48. Mr.Pratik B. Barot, learned counsel for the appellants of Criminal Appeal No.319/2012 (original accused Nos.1 to 5), has led the arguments on behalf of all the appellants, which have been amply supplemented by Mr.Umesh A. Trivedi, learned counsel for original accused No.7 on behalf of the said accused and original accused No.6, represented by Mr.Mahendra U. Vora, learned advocate. The gist of the submissions is as below:
(1) The first part of the Charge at Ex.7 neither refers to any specific overt act played by accused Nos.2 to 5 nor is there any specific attribution of a particular weapon in their hands at the time of the commission of the offence. The second part of the Charge refers to the role of only accused No.1, which is having inflicted a knife blow upon the chest of the deceased, making him liable for the offence punishable under Section 302 read with Page 46 of 189 HC-NIC Page 46 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Section 149 of the IPC. Accused Nos.2 to 7 are apparently kept outside the purview of Section 302 of the IPC. Part 3 of the Charge though refers to an unlawful assembly by all seven accused persons, does not refer to accused Nos.2 to 7 where it refers to injuries sustained by the injured eye witness upon his right hand thumb and finger with the knife. It does not bind accused Nos.2 to 7 with the commission of the offence under Section 324 read with Section 149 of the IPC. Further, the Charge is also defective to the extent of the involvement of accused Nos.2 to 5 in the commission of the offence as regards the liability under Sections 302 and 324 of the IPC, which is confined only to accused No.1. (2) The evidence of PW2, Rajsinh Kesharsinh Padhiyar at Ex.20 (first informant) is not truthful. This witness is the real brother of the deceased. He attributes the infliction of the knife blow on the chest of the deceased by accused No.1, whereas accused Nos.2 to 7 are shown to be present at the spot Page 47 of 189 HC-NIC Page 47 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT with sticks and pipes in their hands. However, no specific role has been attributed by him to accused Nos.2 to 7. This witness, in his examinationinchief, refers to accused Nos.2 to 7 having inflicted indiscriminate blows upon PW4 with sticks and pipes. However, the medical evidence of the injured witness does not support this theory as no injuries from sticks and pipes were found on his body. The only injuries found were on the sole of the left leg and on the right hand thumb and index finger, which were caused by a sharp cutting instrument like a knife. This witness is, therefore, an unreliable and noncredible witness, eager to implicate accused Nos.2 to 7 in the commission of the crime. Though he claims to be an eyewitness, however, in cross examination, he states that he reached the spot about ten minutes before the actual occurrence. He is not sure in whose vehicle the deceased reached the spot though he states he saw accused Nos.1 to 7 at the spot armed with deadly weapons in their hands. The testimony Page 48 of 189 HC-NIC Page 48 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT of this witness does not inspire confidence as, in a short time of ten minutes when he could not even gather details of the vehicle in which the deceased arrived, he has purportedly described, in detail, the weapons in the hands of the accused. His short presence is shown at the scene of offence only with a view to pressing into service Sections 147 to 149 IPC against all the accused. However, this witness has not stated whether the accused were present with the express purpose to kill the deceased, or not. He states that he does not know whether the accused were standing with weapons with the object of killing the deceased, or not. (2.1) It is further submitted that PW2,who claims to have witnessed the occurrence, is a chance witness. He has stated in cross examination that there were six to seven "Paan" shops stationed in between his house and the scene of offence, yet he chose the the more distant shop of Khushalji Chhogaji for the purpose of smoking a "Beedi". This is nothing but an attempt by this witness to ensure that Page 49 of 189 HC-NIC Page 49 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT he is taken as an eyewitness. Else, there was no occasion for him to have visited a particular "Paan" shop which is at a distance when there were six to seven "Paan" shops situated between his house and the scene of offence where he could easily have gone to smoke a "Beedi". It is emphasised that PW2 has admitted in his crossexamination that if he wants to go to his field from his house, the path passing through the area called Brahmanvaas is shorter; yet he opted for a longer way in order to cross the spot of incident, endeavouring to show his presence at the scene of offence and projecting himself as an eyewitness to the case.
(2.2) Elaborating further on the testimony of PW2, Mr.Pratik B. Barot, learned counsel, has submitted that this witness has clearly deposed that accused Nos.1 to 5 belong to one family whereas accused No.6 belongs to a different community and has no connection with accused Nos.1 to 5. With regard to accused No.7, he states that he belongs to the same community as Page 50 of 189 HC-NIC Page 50 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the deceased but has no connection with accused Nos.1 to 6. This witness has admitted to the angle of past enmity and differences with accused Nos.6 and 7 and the fact that there was bitterness between him and accused No.6 He had nursed a grievance against accused No.6, which is the cause of implication. This witness further states that two years prior to the incident, accused No.7 had lodged a compliant against his family members because of which he had to procure bail. Thus, there is past enmity between PW2 and accused Nos.6 and 7 who have been implicated falsely for this reason. (2.3) Mr.Barot has further pointed out that the deposition of PW2 is not in consonance with the complaint filed by him. In the complaint, he has stated that accused Nos.2 and 6 inflicted indiscriminate pipe blows on the deceased. This part of the narration does not tally with his oral evidence where he does not attribute any overt act or role to accused Nos.2 to 6. This further points out to his zeal to implicate the said accused. Insofar as the Page 51 of 189 HC-NIC Page 51 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT injuries sustained by PW4 are concerned, in the compliant, PW2 refers to accused Nos.3 to 5 as having inflicted indiscriminate stick blows upon the injured witness whereas in his oral evidence, he attributes the injuries has having been inflicted by accused Nos.2 to 7 with the help of sticks and pipes which is also not in consonance with the compliant. In view of the contradictions between the version stated in the compliant and the oral deposition of this witness, the said witness is found to be unreliable and untrustworthy.
(3) Referring to the evidence of PW4, the injured witness, learned counsel has submitted that there are discrepancies in the evidence of this witness as compared to that given by the complainant. PW4 has come with a case that all the accused cordoned off him and the deceased and inflicted indiscriminate blows with the weapons with which they were armed. Though this witness states that the deceased sustained a knife injury at the behest of accused No.1, however, regarding the injuries Page 52 of 189 HC-NIC Page 52 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT on his own person, he states that the moment he tried to rescue the deceased from further beatings, all the accused persons barged towards him and in the event he sustained a knife injury upon his right hand thumb and index finger at the behest of accused No.1. This witness also refers to the injury sustained by him on the sole of his left leg after he fell down on the ground. In the examinationinchief, he states that all the accused persons inflicted indiscriminate stick blows upon his back, hands and head with sticks and pipes. This is a highly exaggerated version which is not at all corroborated by the medical evidence. Neither is the version that the deceased was also beaten continuously with sticks and pipes by the accused, supported by the postmortem report.
(3.1) PW4, in the history given by him before the Medical Officer, refers to his having sustained an injury at the hands of Ganpat Kastur Mali with the help of an "unknown substance" which aspect deserves a closer look Page 53 of 189 HC-NIC Page 53 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT as to whether the witness is trying to save somebody responsible for the offence under Section 302 of the IPC. Due to past enmity, this witness is trying to implicate all the accused.
(3.2) That the true genesis of the crime has been suppressed by the injured eyewitness. When he is confronted in crossexamination regarding the parallel story put up by the defence, he bluntly denies it though he has himself referred to Ganpat Kastur Mali in the medical history given by him. This supports the evidence of DW1. The entire case of the prosecution, therefore, comes into the realm of doubt and suspicion.
(3.3) This witness denies that a compliant was given against him and his brothers by the accused. He also denies that an application was given by the village people against him and his family. This denial is proved to be false, as is clear from the complaints that are exhibited at Exs.74, 75 and 76. which further go to show Page 54 of 189 HC-NIC Page 54 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT that this witness is unreliable and untrustworthy and is deposing in order to suppress the true cause of the incident. (3.4) PW4 further confirms in his cross examination that two years prior to the date of the incident, accused No.7 had lodged a case against him and his brothers at Panthawadi Police station pursuant to which they had to obtain bail. He further states that he had also lodged a complaint against accused No.7. Therefore, there is an angle of past enmity which has clearly emerged from his deposition. This witness admits that accused No.7 resides separately from the other set of accused persons and has separate agricultural land and arrangements for agriculture, which have nothing to do with the other accused persons. In his crossexamination, this witness clearly states that accused No.7 was not present at the scene of offence on the date of the incident. He also answers in the affirmative by deposing that whatever he has stated in favour of accused No.7 is true.
Page 55 of 189 HC-NIC Page 55 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT (3.5) It is further canvassed on behalf of the appellants that the versions of both the eye witnesses regarding the number of injuries sustained by the deceased upon his person and those sustained by PW4 as an injured witness do not match the description given in their testimony. The medical evidence does not support the deposition of the injured witness that he and the deceased were beaten indiscriminately with sticks and pipes. The postmortem report refers to only one substantial injury upon the chest of the deceased in the form of a stabwound which can be corelated to the injury stated to have been inflicted by accused No.1 with the knife. The second injury on the person of the deceased is in the form of an abrasion upon his left knee which could possibly have occurred by a fall to the ground in the facts and circumstances of the case. PW4 has stated that he was cordoned off by accused and given indiscriminate stick blows on his back, hands and head whereas the medical evidence does not support this version Page 56 of 189 HC-NIC Page 56 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT at all. The medical certificate regarding PW4 speaks only about two incise wounds upon the right hand thumb and index finger which could easily be corelated to the knife injury caused by accused No.1. The medical evidence is, therefore, at variance with the ocular evidence. Looking to the facts and circumstances of the case, the ocular evidence, being untrustworthy, may be disbelieved.
(4) It is submitted that though independent witnesses were available, the prosecution has chosen not to examine them. It has come in the evidence of both the eye witness PWs2 and 4, that independent persons such as one Some Ranchhodji Patel, Kachraji Magnaji, Ratnaji, Shakraji, reached the spot after the injured witness started screaming for help. Those persons could have thrown light upon the case of the prosecution but have not been examined, for some reason or the other, leaving only two interested and inimical witnesses, closely related to the deceased, upon whose testimonies the prosecution relies Page 57 of 189 HC-NIC Page 57 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT heavily. Both the eyewitnesses are real brothers of the deceased, therefore, their testimonies cannot be believed outright. PW2 has stated that he went to the "Paan" shop of Khushalji Chhogaji to smoke a "Beedi", however, the said Khushalji Chhogaji has not been examined though he is a crucial independent witness. Nor was he cited as a witness in the Chargesheet filed against the accused before the Court below.
(5) The version of DW1 Prakashbhai Narsinhbhai Mali, wherein he has stated the true genesis of the incident, namely the molestation of his sister Vasantiben by the deceased, is much more probable. This witness has referred to a person named Ganpatji Kasturji Mali who intervened when Vasantiben screamed upon being molested by the deceased. According to the defence, it was the deceased who took out a knife from his coat. When the deceased was in the process of inflicting a knife injury upon DW1, PW4, the brother of the deceased, intervened and a scuffle took Page 58 of 189 HC-NIC Page 58 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT place in which PW4 sustained a knife injury and the deceased sustained the injury on his chest.
(5.1) DW2, Jyotsnaben Narsinhbhai Mali, daughter of accused No.1, has deposed regarding the application given by her and other village people against the deceased and other family members, which have been produced on record. The version of this witness has not been disproved. The Panchnama of the scene of offence records that a milk can and a bicycle were lying there, which supports the version of the defence.
(6) Learned counsel for the accused has vehemently submitted that the common object of the accused to commit murder has not been proved beyond reasonable doubt. However, the liability under Sections 147 to 149 of the IPC has been affixed upon the accused who are shown to have assembled at the scene of offence with weapons in their hands. The depositions of PWs 2 and 4 do not state that the accused formed an Page 59 of 189 HC-NIC Page 59 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT unlawful assembly and the common object of committing murder of the deceased was shared by each and every one of them. Only one of the accused had a sharpedged weapon and the others are stated to have carried sticks and pipes. Therefore, without any specific finding regarding the common object shared by each and every one of the accused, it would not be safe to convict them with the aid of Sections 1487 to 149 IPC. No clear evidence is forthcoming regarding the aspect that accused No.1 was carrying a knife from the very inception, or that he had an intention to murder the deceased, or that all the other accused also shared the same intention. Merely standing there holding weapons in their hand would not bring them under the purview of Sections 147 to 149, without any finding regarding the common object purportedly shared by them. (7) The blood group of the deceased and accused No.1 has not been ascertained or matched. The Serological Report shows that human blood was found on the knife alleged to Page 60 of 189 HC-NIC Page 60 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT have been used by accused No.1. The pant belonging to accused No.1 had traces of `O' Group blood on it. There is nothing on record to show that any blood sample from either of them was sent to the FSL. Therefore, there can be no positive finding that blood of `O' Group is that of the deceased. In the absence of such an exercise being undertaken, the incriminating circumstance in the form of the Serological Report cannot be conclusive proof against accused No.1 and this circumstance could not have been used against accused No.1 as an individually proved circumstance. (8) Though the circumstance of human blood of `O' Group found on the pant of accused No.1 is an incriminating circumstance against the said accused, it has not been clearly brought to his knowledge in his further statement recorded under Section 313 of the Code. He is, therefore, not expected to offer any explanation to such incriminating circumstance which was never put to him, as can be seen from Question No.31 which talks of Exs.61 and 62. A Page 61 of 189 HC-NIC Page 61 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT question is put whether accused No.1 wants to answer, or offer any explanation to, Ex.61, the FSL Report and Ex.62, the Serological Report. To this, accused No.1 answered that it is a false report. However, the incriminating circumstance of the blood on his pant was never specifically put to him, therefore, it has caused immense and serious prejudice to his case visavis putting a question under Section 313 of the Code.
(9) The question of the pant of accused No.1 having `O' Group blood on it pales into insignificance because of the fact that the Recovery Panchnama of the clothes of this accused has been carried out on 20.05.2008 that is, four days after the incident. There is no mention in the said Panchnama regarding the clothes of accused No.1 being seized. If they have not been seized, how could they have been sent to the FSL, is a question that remains unanswered. Further, in the Panchnama, it is stated that no traces of blood were found on the clothes of accused Nos.1 or 2. Neither has Page 62 of 189 HC-NIC Page 62 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT any witness of this Panchnama been examined to prove its contents. The Panchnama has been exhibited directly by the Investigating Officer, which is an impermissible course of action.
(9.1) In addition thereto, it is difficult to digest that an accused person who has purportedly committed murder, would roam around in the same set of clothes with blood stains on them, for four days, with effect from 16.05.2008 to 20.05.2008.
(10) The discovery of the knife at the behest of accused No.1 is not in consonance with the provisions of Section 27 of the Evidence Act. The Panch witness of the discovery of the knife does not state, in specific terms, that a disclosure statement was made by accused No.1 before him, leading to the discovery of the knife under Section 27 of the Evidence Act. Neither does he depose about the exact manner or words used by accused No.1 pursuant to which the knife was seized, which is the requirement Page 63 of 189 HC-NIC Page 63 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT of law. The exact words of accused No.1 suggesting his free will and volition to lead the investigating team to the discovery of this fact are not reproduced. In this view of the matter, a corroborative circumstance of this nature cannot be said to be conclusively proved against accused No.1 in the eyes of law. (11) In the alternative, it is submitted that only a single blow was inflicted by accused No.1 on the chest of the deceased. The evidence of PWs2 and 4 discloses that a heated conversation took place soon before the incident between the sides of the complainant and the accused. During the quarrel between the parties, accused No.1 inflicted a knifeblow on the deceased. The knifeblow is a consequential effect of the heated quarrel, therefore, there was no premeditation on the part of accused No.1 and the benefit of Exception4 to Section 300 of the IPC may be extended to him and the offence be converted from that under Section 302 to 304 PartI or Part II IPC, on the facts and circumstances of the case.
Page 64 of 189 HC-NIC Page 64 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
49. In support of the above submissions, Mr.Pratik B.Barot, learned counsel, has relied upon several decisions, as under:
(I) On the point of the veracity of an injured eyewitness whose oral evidence is not supported by medical evidence, reliance has been placed upon Indira Devi and Ors. v. State of Himachal Pradesh - 2016(3) Crimes 43 (SC), wherein the Supreme Court has held:
"7. The proposition of law that an injured witness is generally reliable is no doubt correct but even an injured witness must be subjected to careful scrutiny if circumstances and materials available on record suggest that he may have falsely implicated some innocent persons also as an after thought on account of enmity and vendetta. The trial court erred in not keeping this in mind."
(emphasis supplied) (II) On the aspect that the version given by eyewitnesses who are also interested and witnesses being related to the deceased, in addition to being inimically disposed against Page 65 of 189 HC-NIC Page 65 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the accused and whose versions were not corroborated by medical evidence, reliance has been placed upon a judgment of the Supreme Court in Kuldip Yadav And Others v. State of Bihar - (2011)5 SCC 324, wherein it is held that:
"43. (n) The version given by eyewitnesses who were also interested witnesses on account of their relationship with the deceased and being inimically deposed against the accused persons is highly exaggerated, contrary to each other and not fully corroborated with medical evidence and there are discrepancies about the number of accused persons, weapons and ammunitions carried by them and they are not in tune with what (PW9) informant has stated in his deposition. In other words, the prosecution has not presented true version on most of the material parts and therefore the witnesses and material placed on their side does not inspire confidence and cannot be accepted on its face value."
(emphasis supplied) (III) The very same judgment has been relied upon to bring home the force of the submission Page 66 of 189 HC-NIC Page 66 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT that it is mandatory for the Court, before convicting an accused with the aid of Section 149, to give clear findings regarding the nature of the unlawful common object. The relevant extract of the judgment is as under:
"36. In order to understand the rival claim, it is useful to refer Section 149 which reads as follows: "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals Page 67 of 189 HC-NIC Page 67 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal and Others vs. State of Bihar (1981) 2 SCC 755.
... ... ...
39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would Page 68 of 189 HC-NIC Page 68 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT be liable for the same under Section 149 IPC.
40. In Rajendra Shantaram Todankar vs. State of Maharashtra and others (2003) 2 SCC 257=2003 SCC (Crl.) 506, this Court has once again explained Section 149 and held as under:
"14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be Page 69 of 189 HC-NIC Page 69 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 -- either clause -- is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act...."
The same principles have been reiterated in State of Punjab vs. Sanjiv Kumar alias Sanju and others (2007) 9 SCC 791."
(IV) Regarding the membership of an unlawful Page 70 of 189 HC-NIC Page 70 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT assembly or that the accused shared the common object for such unlawful assembly, reliance has been placed upon Nagesar v. State of Chhattisgarh - (2014)6 SCC 672, wherein the Apex Court has held as below:
"13. It is settled law that mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for the offences committed by the others unless there was sufficient evidence on record to show that one such also intended to or knew the likelihood of commission of such an offending act. ( K.M Ravi and others Vs. State of Karnataka (2009) 16 SCC 337). As already seen in this case there is no legally acceptable material to prove that the appellants acted as members of unlawful assembly to connect them with the murder of the deceased Korma Rao. At any rate in the absence of reliable evidence to prove that the appellants were either present on the spot or that they had committed any overt act that could show that they share the common object of the unlawful assembly it is not possible to support their conviction and benefit of doubt has to be given to them.
14. In the result both the appeals are Page 71 of 189 HC-NIC Page 71 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT allowed and the appellants are given benefit of doubt and the conviction and sentences imposed on them are set aside and they are acquitted of all the charges framed against them. They are directed to be released from the custody forthwith unless otherwise required in connection with any other case."
(V) On the same point of law, reliance has been placed upon another recent judgment of the Supreme Court in Uday Singh v. State of Madhya Pradesh - AIR 2017 SC 393, the relevant extract of which is as below:
"10. ..... Ingredients of Section 149 do not get attracted. In Baladin & Ors. vs. State of U.P. [ AIR 1956 SC 181 ], this Court held that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done some thing or omitted to do something which would make him a member of unlawful assembly or unless the case falls under Section 142 of the Indian Penal Code. Merely because some persons assembled, all of them cannot be condemned `ipso facto' as being members of that unlawful assembly It was incumbent upon the prosecution to prove that the commission of the offence was by any member of an unlawful assembly and such offence Page 72 of 189 HC-NIC Page 72 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT must have been committed in prosecution of the common object of the unlawful assembly or such that the members of the assembly knew that it was likely to be committed. From the statements of the witnesses, it does not get proved that other members knew that the offence of murder is likely to be committed"
(VI) Another judgment on the issue of the requirement that the common object shared by the accused persons ought to be proved, reliance has been placed upon a judgment of the Supreme Court in Vijay Pandurang Thakre & Ors. v. State of Maharashtra - 2017 C.L.R. (SC) 144 : AIR 2017 SC 897 (also relied upon by Mr.Umesh A.Trivedi, learned counsel, on behalf of accused Nos.6 and 7), wherein, after reproducing Section 149 IPC, the Supreme Court held:
"14. As is clear from the plain language, in order to attract the provision of the Section, following ingredients are to be essentially established.
(i) There must be an unlawful assembly.
(ii) Commission of an offence by any member of an unlawful assembly.Page 73 of 189
HC-NIC Page 73 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
(iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. If these three elements are satisfied, then only a conviction under Section 149, I.P.C., may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly.
15. In the facts of the present case, we find that common object of the assembly, even if it is presumed that there was an unlawful assembly, has not been proved. The expression 'in prosecution of the common object' occurring in this Section postulates that the act must be one which have been done with a view to accomplish the common object attributed to the members of the unlawful assembly. This expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with common object by virtue of nature of object. In the instant case, even the evidence is not laid on this aspect. As pointed out above, the courts below were influenced by the fact that one of the injuries on the person of Ashok was on his head which became the cause of death Page 74 of 189 HC-NIC Page 74 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT and from this, common object is inferred.
... ... ...
18. No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. If 30 persons had attacked the members of Deshmukh Group, there are no injuries on the vital parts of other persons who got injured in the said episode. Ashok also suffered only one injury on his head and no other injury is on vital part of his body. Had there been any common objective to cause murder of the members of Deshmukh Group, there would have been many injuries on deceased Ashok as well as other injured persons on the vital parts of their body. On the contrary, it has come on record that the injuries suffered by other persons are on their back or lower limbs i.e. legs etc."
This judgment is pressed into service to bring home the point that only one injury was found on a vital part of the deceased that is attributed to accused No.1 and no other injuries were found, nullifying the alleged role of accused Nos.2 to 7.
Page 75 of 189 HC-NIC Page 75 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT (VII) Another judgment on the point that clear findings are required to be recorded before convicting an accused person under Section 149 of the Code, reliance has been placed upon a judgment of the Supreme Court in Bhudeo Mandal And Others v. State of Bihar - (1981)2 SCC
755. In this judgment, the Supreme Court has held that before convicting an accused with the aid of Section 149, the Court must give clear findings regarding the nature of the common object and that an object was unlawful. In the absence of such finding as also overt act on the part of the accused, the mere fact that they were armed would not be sufficient to prove the common object.
(VIII) On the point that the medical evidence is not in conformity with the ocular evidence, reference has been made to the judgment of the Supreme Court in the case of Mahavir Singh v. State of Madhya Pradesh - (2016)10 SCC 220. The relevant extract is as below:
Page 76 of 189
HC-NIC Page 76 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT "22. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value visavis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved [See : Abdul Sayeed v . State of M.P., (2010) 10 SCC 259] ... ... ...
24. It is the duty of the Apex Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings to state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements [See :
Tahsildhar Singh v. State of UP, AIR 1959 SC 1012; Pudhu Raja v. State, (2012) 11 SCC 196; State of UP v. Naresh, (2011) 4 SCC 324]. The case in hand is a fit case, Page 77 of 189 HC-NIC Page 77 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT wherein there are material exaggerations and contradictions, which inevitably raises doubt which is reasonable in normal circumstances and keeping in view the substratum of the prosecution case, we cannot infer beyond reasonable doubt that the appellant caused the death of the deceased."
(emphasis supplied) (IX) On the point regarding the Serological comparison of the blood of the deceased and the accused as well as the blood stains on the clothes of the accused, reliance has been placed upon a judgment of the Supreme Court in Prakash v. State of Karnataka - (2014)12 SCC
133. The same judgment has been pressed into service regarding the second point about the incriminating circumstances not being put to the accused while recording the statement under Section 313 of the Code. The relevant extract regarding the first point is as below:
"40. The second discrepant statement was that Shivanna stated that the police had kept Prakash's clothes on the table. It was submitted, in other words, that the blood Page 78 of 189 HC-NIC Page 78 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT stained clothes were already seized by the police and kept on the table. We are not sure whether the actual statement made by Shivanna has been lost in translation.
41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash's clothes were those of Gangamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB."Page 79 of 189
HC-NIC Page 79 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT On the second point regarding incriminating circumstances not being put to the accused, the Supreme Court has held as below:
"42. Learned counsel for Prakash contended that the report of the serologist was not put to him when he was examined under Section 313 of the Code of Criminal Procedure. The High Court dealt with this issue in a rather unsatisfactory manner. This is what the High Court had to say:
"Even assuming that the report of the Serologist had not been put to the accused in his statement recorded under Section 313 Cr.P.C. the same cannot be said to be fatal to the prosecution, more so, when the same had not prejudiced the accused in any way. In fact, we put the said Serologist's report Ex.P29 to the learned counsel appearing for the respondent and sought for their explanation in this regard and it is submitted that they have nothing to say in that matter. That means, the respondent has no explanation to offer in this regard."
43. It is one thing to say that no prejudice was caused to Prakash by not affording him an opportunity to explain the serological report. It is quite another thing to put the report to his learned counsel in appeal and give him (the learned counsel) an opportunity to explain the report of the serologist. The course adopted by the High Page 80 of 189 HC-NIC Page 80 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Court is clearly impermissible. The law on the subject was laid down several decades ago by the Constitution Bench in Tara Singh v. State and is to the effect that an accused must be given a chance to offer an explanation if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him or not. This is what the Constitution Bench said:
"17. ...It is important therefore that an accused should be properly examined under section 342 and, as their Lordships of the Privy Council indicated in Dwarkanath v. Emperor,26 if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and I cannot permit it to be slurred over. I regret to find that in many cases scant attention is paid to it, particularly in Sessions Courts. But whether the matter arises in the Sessions Court or in that of the Committing Magistrate, it is important that the provisions of section 342 should be fairly and faithfully observed."
44. This was more clearly spelt out in Ajay Page 81 of 189 HC-NIC Page 81 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Singh v. State of Maharashtra27 when this Court held:
"14. ....A conviction based on the accused's failure to explain what he was never asked to explain is bad in law."
45. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used against Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of the prosecution."
(emphasis supplied) (X) Regarding the nature of questions required to be put to the accused under Section 313 of the Code, reliance has been placed upon a judgment of the Supreme Court in Tara Singh v. The State - AIR (38) 1951 SC 441,wherein it has been held as below:
"29. The High Court also bases its conclusion on the circumstantial evidence arising from the production of the Kripan and the recovery of the shirt from the appellant. Those articles are said to be Page 82 of 189 HC-NIC Page 82 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT stained with human blood. The appellant was not asked to give any explanation about this. The Serologist's report had not been received when the appellant was questioned by the Committing Magistrate. Therefore, he could not be asked to explain the presence of human blood stains on the Kripan. All he was asked was whether the bloodstained Kripan was recovered at his instance. That is not enough. He should also have been asked whether he could explain the presence of blood stains on it. The two are not the same. Then, in the Sessions Court there was the additional evidence of the Imperial Serologist showing that the Kripan had stains of human blood on it. That was an additional and very vital piece of evidence which the appellant should have been afforded an opportunity of explaining.
30. I cannot stress too strongly the importance of observing faithfully and fairly the provisions of S. 342, Criminal P. C. It is not a proper compliance to read out a long string of questions and answers made in the Committal Court and ask whether the statement is correct. A question of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are true, or whether there is Page 83 of 189 HC-NIC Page 83 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT some mistake or misunderstanding despite the accurate recording. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning Trust therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in Page 84 of 189 HC-NIC Page 84 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, the disregard of the provisions of S. 342, Criminal P. C., is so gross in this case that I feel there is grave likelihood of prejudice."
(emphasis supplied) (XI) It has been argued on behalf of the appellants that the benefit of Exception4 to Section 300 ought to be extended to accused No.1. In this regard, reference has been made to the judgment of the Supreme Court in the case of Ahmed Shah And Another v. State of Rajasthan - (2015)3 SCC 93.
(XI) Regarding the aspect of recovery of the weapon of offence, knife in this case, learned counsel for the appellants has relied upon the judgment in the case of Ram Sunder Sen v. Narender alias Bode Singh Patel - 2015 AIR SCW 6426, the relevant paragraph of which is reproduced below:
"9. The next incriminating fact is the Page 85 of 189 HC-NIC Page 85 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT recovery of the bloodstained underwear of the deceased made at the instance of the accused, from the house of the accused. However, upon careful examination, serious doubts are cast upon the incident of recovery. The witnesses to this seizure memo are Lalit Kumar Sen (PW9) and Dayanand (PW22). As per the deposition of PW9, many doubts are created. He deposed that red colour underwear as well as an underwear of accused were seized. However, he did not state as to whom did the red colour underwear belong. He also did not mention the place from where it was recovered nor did he mention the manner in which the articles were seized. PW22 further made certain doubtful revelations stating that at the time of recovery, only he, accused and the police were present. However, he only confirms the recovery of a red colour underwear, but the place and surrounding of the place of recovery were not deposed by PW22. The deposition of the above two witnesses raises various doubts about recovery of material facts. Therefore, the High Court correctly raised doubt that it is highly unnatural that the accused will keep the underwear in a pitcher in his own house."
(XII) Another judgment relied upon on the Page 86 of 189 HC-NIC Page 86 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT aspect of defective recovery is the case of Govindaraju alias Govinda v. State by Sriramapuram Police Station And Another - (2012)4 SCC 722, wherein, it is stated thus:
"51. Now, we will come to the recoveries which are stated to have been made in the present case, particularly the weapon of crime. Firstly, these recoveries were made not in conformity with the provisions of Section 27 of the Indian Evidence Act, 1872. The memos do not bear the signatures of the accused upon their disclosure statements. First of all, this is a defect in the recovery of weapons and secondly, all the recovery witnesses have turned hostile, thus creating a serious doubt in the said recovery. According to PW4 and PW5, nothing was recovered from the appellant Govindaraju. According to PW6 and PW8, nothing was recovered from or at the behest of the accused, Goverdhan."
(XIII) Another judgment referred to regarding whether the discovery conforms to the provisions of Section 27 of the Evidence Act is rendered by a Division Bench of this Court in the case of Bachubhai Kabai Baria v. State of Page 87 of 189 HC-NIC Page 87 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Gujarat - 2012(3) GLR 2400, wherein it has been held as below:
"24. We shall now proceed to discuss as to whether the aforesaid circumstances would help the prosecution in any manner or not. So far as the discovery of weapon is concerned, it is no discovery in the eye of law as contemplated under Section 27 of Evidence Act. We have carefully gone through the entire evidence of the panch witness, i.e. PW4 (Exh.18), Manharbhai Nanabhai. This witness has not said a word as regards, accused making statement on his own free will and volition that he wanted to show the place, where he had concealed the axe which was used in the commission of offence. Such statement is not even being found in the main panchnama. Even the Investigating Officer has not deposed as to exactly what was the statement made by the accused which led to the discovery of a fact namely, the weapon of offence. By merely deposing that the discovery panchnama was drawn upon accused pointing out the place from where the axe was discovered is no discovery in the eye of law. Even, if it is believed that accused did point out the place from where the axe was discovered would only go to show Page 88 of 189 HC-NIC Page 88 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT knowledge and not the authorship of concealment. We have no hesitation in out right rejecting this part of evidence from consideration. Same is the case, so far as the recovery of clothes of the accused with blood stains is concerned as the panch witness turned hostile. It is true that even if the panch witness has turned hostile and has failed to prove the contents of the panchnama the prosecution could have relied upon the evidence of the Investigating Officer in this regard but in the present case what we find is that the Investigating Officer has also failed to prove the contents of the panchnama of recovery of clothes of the accused with blood stains on the same. On a plain reading of deposition of Investigation Officer we found that all he could prove is the fact of drawing panchnama and obtaining signature of panchas in his presence. As per settled legal proposition, contents of panchnama is required to be proved. It can not be read as evidence rather as corroborative piece of evidence."
(emphasis supplied) (XIV) Another judgment of the Division Bench of this Court relied upon is in the case of Page 89 of 189 HC-NIC Page 89 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Ashok Somalal Thakkar and Anr. v. State of Gujarat - 2007(2) GLH 520, wherein the Division Bench has held that evidence of Panch witness indicating that the disclosure statement is made by accused before the Police and not before the Panchas and the weapons were discovered at the instance of only one accused, such discovery is not creditworthy.
50. In addition to the submissions advanced by Mr.Pratik B. Barot, learned counsel, Mr.Umesh A. Trivedi, learned counsel for original accused No.7 (appellant of Criminal Appeal No.326/2012) has made detailed oral submissions on behalf of the said accused as well as original accused No.6 (appellant of Criminal Appeal No.404/2012), represented by Mr.Mahendra U. Vora, learned advocate. The summary of his submissions is as below:
(1) Accused Nos.6 and 7 have no motive to commit the offence against the deceased and even the prosecution has not disclosed any such motive.Page 90 of 189
HC-NIC Page 90 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT (2) Accused Nos.6 and 7 have no connection with accused Nos.1 to 5. They are of different castes, have different fields and houses in different areas than that of accused Nos.1 to 5, and are not connected to those accused in any manner. On the contrary, it appears that accused Nos.6 and 7 have been falsely roped in by the prosecution on the basis of the complaint made by PW2, as accused No.6 has purchased the field that was being tilled by PW2, for which PW2 nursed a grievance, as admitted by him in his cross examination. The reason to falsely implicate accused No.7 appears to be that the said accused had filed a compliant before the Police against the complainant party, as admitted by PW2 in his crossexamination. PW2 also had to give sureties and bail bonds, therefore, he was inimically disposed towards accused No.7. (3) Apart from having no motive, no material has been produced by the prosecution to prove that accused Nos.6 and 7 shared a common object with accused Nos.1 to 5 to form an unlawful Page 91 of 189 HC-NIC Page 91 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT assembly with the object of killing the deceased.
(4) On the point of unlawful assembly, reliance has been placed upon a judgment of the Supreme Court in Vijay Pandurang Thakre & Ors. v. State of Maharashtra - AIR 2017 SC 897. (5) Learned counsel has further submitted that PW2 is a gotup witness who may not have had any chance to witness the incident, as claimed by him. His presence at the scene of offence at the time of the occurrence is doubtful. This aspect emerges from the examinationinchief of this witness where, apart from accused No.1, he does not attribute any specific blow with any specific weapon by any specific accused. It is only stated generally that others had sticks and pipes in their hands and accused No.6 had a pipe in his hand but no specific role is assigned to the rest of the accused with their respective weapons. PW2 does not attribute any blow with sticks and pipes to accused Nos. 2 to 7. The Page 92 of 189 HC-NIC Page 92 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT medical evidence also does not support the narration by PW2, therefore, it appears that he is not a trustworthy witness whose testimony can be relied upon for an offence under Section 302, with the aid of Section 149.
(6) That there are inconsistencies between the testimonies of PWs2 and 4, the injured witnesses, both of whom are supposed to have been present at the spot, which render the depositions of both these witnesses untrustworthy.
(7) Insofar as accused No.7 is concerned, there is absolute inconsistency regarding the injury on the witness PW4 himself who, in his examinationinchief, attributes a stick to accused No.7 and states that he gave indiscriminate blows to him and his brother. However, in his crossexamination, this witness has, in no uncertain terms, admitted that at the time of the incident, accused No.7 was not present. In view of such type of inconsistency relating to the involvement of accused No.7, it Page 93 of 189 HC-NIC Page 93 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT would be hazardous to rely on the testimony of this witness in order to convict the accused persons, especially accused No.7, when this story is belied by medical evidence. In support of this submission, reliance has been placed upon Suraj Mal v. The State (Delhi Administration) - AIR 1979 SC 1408, wherein, the Supreme Court has held:
"2. .... It is well settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. For these reasons, therefore, when the Special Judge disbelieved the evidence of P.Ws. 6, 8 and 9 in regard to the complicity of Ram Narain, it was not open to him to have convicted the appellant on the same evidence with respect to the appellant, which suffered from same infirmities for which the said evidence was disbelieved regarding the complicity of Ram Narain. If the witnesses drew no distinction in the examinationinchief regarding acceptance of bribe by Ram Narain and by the Page 94 of 189 HC-NIC Page 94 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT appellant and the witnesses were to be disbelieved with respect to one, they could not be believed with respect to the other. In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible. ...."
(8) That the injury certificate at Ex.23 prepared by PW3 Dr.Haresh Narayan Gadhavi, states, in clear terms, the history given by PW4, the injured eyewitness, who himself informed the Doctor that he had been assaulted with an unknown weapon, at Odhva Bus Station, by Ganpat Kastur Mali and that he was beaten while he was trying to rescue his brother. Though the injured eyewitness has stated that he did not give any history to the Doctor, however, the Doctor has categorically stated that he has recorded the history as given to him by the injured eyewitness. No question has been put to the Doctor regarding the denial by the injured eyewitness. PW3 is an independent and neutral witness who bears no grudge to either side. It is not the case of the prosecution that the Doctor is deposing Page 95 of 189 HC-NIC Page 95 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT falsely, or has fabricated the contents of the certificate. The Doctor is a prosecution witness, as is PW4, therefore, there is no reason to disbelieve the testimony of the Doctor. The history given by PW4 to PW3 casts grave doubt on the entire genesis of the incident. The certificate reveals the true genesis of the incident which is contrary to the case of the prosecution.
(9) The prosecution has come out with a a story that the weapons of offence, namely pipe and stick were recovered from accused Nos.6 and 7 at the time of their arrest. No blood stains were found on the pipe and stick. However both the Panch witnesses, PWs13 and 14 have not supported the version of the prosecution regarding the recovery of stick and pipe from accused Nos.6 and 7, respectively, therefore, the said recovery is not proved. Even though seized, the pipe and stick have not been sent for forensic examination. As PW15 has not deposed regarding the recovery of the pipe and stick from accused Nos.6 and 7, therefore, it Page 96 of 189 HC-NIC Page 96 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT cannot be said that the weapons of offence have been recovered by accused Nos.6 and 7. (10) Apart from the deposition of the two eyewitnesses, namely PW2 first informant and PW4, the injured eyewitness, both of whom are real brothers of the deceased, there is no evidence connecting accused Nos. 6 and 7 with the commission of the incident. In any case, the depositions of both these eyewitnesses are inconsistent and contradictory to each other.
(11) As the evidence of two eye witnesses, namely PW2 and PW4 is not believable insofar as the participation in the crime by accused Nos.2 to 7 is concerned, the said evidence cannot be believed for the purpose of proving the presence of accused Nos.6 and 7. Therefore, it cannot be stated that it has been proved beyond reasonable doubt that accused Nos.6 and 7 were members of the unlawful assembly with the common object of committing the crime of murder.
(12) On the aspect of being a member of an Page 97 of 189 HC-NIC Page 97 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT unlawful assembly, Mr. Umesh A. Trivedi, learned counsel for accused Nos.6 and 7 has placed reliance upon a judgment of the Constitution Bench of the Supreme Court in the case of Masalti v. State of Uttar Pradesh - AIR 1965 SC 202 (V 52 C 38).
SUBMISSIONS ON BEHALF OF THE PROSECUTION
51. Opposing the appeals, Mr.Mitesh Amin, learned Public Prosecutor, has advanced oral and written arguments, which can be briefly summarised as below:
(1) PW3, first informant, has very promptly given the FIR regarding the incident which took place at about 19:00 hrs. on 16.05.2008. He has reported the incident within one hour and thirty minutes, that is, at 20:30 hrs. at the Palanpur City Police Station. This time includes the time taken by the first informant to travel from village Odhva to the General Hospital, Palanpur, and then to Palanpur City Police Station. The FIR narrates clearly the time, date and place of the Page 98 of 189 HC-NIC Page 98 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT incident and mentions the names of all the accused persons and the role played by them. It also narrates the motive with clarity and describes the weapons used and held by the accused. In view of the promptness of the FIR, the question of false implication is fully ruled out. The deposition of the first informant is also in consonance with the narration in the FIR. Therefore, the presence of the accused with their respective weapons with the common object of committing the offence stands proved. The suggestion that the incident took place because the deceased tried to molest the daughter of accused No.1, leading to a quarrel during which the deceased was injured by his own weapon, stands denied by this witness.
(2) The presence of the first informant at the scene of incident is clear from his deposition. He states that he had come to purchase "Beedis". Though he then states that he had gone towards his field in order to water it as the electricity had been turned on, Page 99 of 189 HC-NIC Page 99 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT however, this variance is minor and is hardly sufficient to throw the otherwise credible and trustworthy testimony, overboard. The first informant is a trustworthy eyewitness whose testimony does not suffer from any major contradictions and deserves to be fully accepted. Even if the testimony of this witness is scrutinised carefully, being a related witness, it still stands unshaken and nothing emerges from the crossexamination that would discredit him.
(3) PW4, the injured witness, has suffered incise wound injuries at the hands of accused No.1, who was armed with a knife. This witness has also deposed regarding the motive, which was the demand of the outstanding money by the deceased from accused No.1. A suggestion was put to this witness in crossexamination regarding the alleged incident of molestation of Vasantiben, which has been totally denied. The discrepancies in the testimony of this witness are minor in nature and cannot have the effect of rendering his entire testimony Page 100 of 189 HC-NIC Page 100 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT untrustworthy.
(4) The injured eyewitness has fully disowned and denied that he made any statement regarding his medical history before PW3, Dr.Haresh Narayan Gadhavi. The injured witness remains an utmost credible and trustworthy one. The fact that he was injured in the incident itself is an inbuilt guarantee of his presence at the place of occurrence.
(5) The Panchnama of the scene of offence states that bloodstained mud was collected from the place of occurrence. Upon scientific examination, the blood in the mud was found to be human, belonging to `O' Group. Human blood of `O' Group was also found from the clothes of the deceased (Articles C and D). The said Panchnama is proved by the evidence of PW15, the Investigating Officer, though PW8, one of the Panch witnesses, has not supported the case of the prosecution. Upon his arrest, accused No.1 voluntarily came forward to discover the crime weapon (knife). The Page 101 of 189 HC-NIC Page 101 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Panchnama for the same is on record at Ex.30. PW3, one of the Panch witnesses of the said panchnama, has supported the case of the prosecution. His testimony, coupled with the testimony of PW15, the Investigating Officer, supports the recovery of the knife which, upon examination was found to contain human blood, though the bloodgroup could not be determined. A case of the recovery of the knife, which is the weapon of crime has, therefore, certainly been made out.
(6) Though there is no mention in the Panchnama at Ex.51 regarding the investigator having seized the clothes of accused No.1, however, the pants of the said accused were sent to the FSL thorough a forwarding letter and the description of the pants totally matches with the description given in the Panchnama. The pants were found to be stained with blood belonging to `O' Group which is another clinching piece of evidence. (7) The accused persons have admitted Page 102 of 189 HC-NIC Page 102 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the Panchnama produced and marked as Mark 6/B, pertaining to the recovery of sticks from accused Nos.3 and 4. This document has been admitted by them, therefore, it should be read in evidence as it further corroborates the case of both the eyewitnesses. Insofar as the weapons of the other accused persons are concerned, though the Panch witnesses have not fully supported the case of the prosecution, however, the Investigating Officer has testified regarding the same.
(8) PW1, Dr.Shivrambhai Nagarbhai Patel, who performed the postmortem of the deceased, has clearly stated that the injury sustained by the deceased is possible due to the knife which is the weapon of crime. The said injury is sufficient in nature to cause death. Considering the seriousness of the chest injury, which had gone to the depth of the 6th rib, the case suggested by the defence that the deceased injured himself by his own weapon, is neither probable nor believable.
Page 103 of 189 HC-NIC Page 103 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT (9) DW1 has deposed that the deceased and injured were present at the scene of the offence and the deceased molested his sister Vasantiben, who shouted, and one Ganpat Kastur Mali intervened along with DW1. At that point of time, according to DW1, the deceased took out a knife and tried to assault them but PW4, the injured witness came there and a scuffle ensued during which PW4 received an injury on the right hand thumb and finger, as also an injury on the leg as he fell on the knife which was lying on the ground. DW1 is silent insofar as the injury sustained by the deceased is concerned. His evidence is contradictory and inconsistent with the statement of the injured witness.
(10) The defence has not chosen to examine Vasantiben, who is stated to have disclosed the incident to the Police but the complaint was not recorded by the Police. The Investigating Officer, PW15, was not confronted with regard to not having recorded the complaint of Vasantiben. Hence, the paucity of the defence Page 104 of 189 HC-NIC Page 104 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT evidence is another strong circumstance which goes against the accused persons.
(11) The accused have heavily relied upon the evidence of PW3, Dr.Haresh Narayanbhai Gadhavi, as he has noted the statement under the name of the injured eyewitness. No meaning can be attributed to these three sentences that are noted in the medical case papers, under law. The injured eyewitness has not been confronted with regard to his having given the alleged statements as required under Section 145 of the Evidence Act. The evidence of Dr.Gadhavi, therefore is uninspiring and needs to be excluded from appreciation in totality of the circumstances.
52. In support of his submissions, Mr.Mitesh Amin, learned Public Prosecutor has relied upon the following judgments:
(i) Jodhan v. State of Madhya Pradesh
- (2015)11 SCC 52 on the ground of the testimony of related/ interested witnesses.Page 105 of 189
HC-NIC Page 105 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
(ii) Kattukulangara Madhavan v. Majeed and Others - (2017)5 SCC 568 on the point of unlawful assembly and fastening of criminal liability under Section 149 of IPC.
53. We may now scrutinise the evidence on record keeping in mind the rival submissions and the judgments cited by the opposing parties. For the sake of convenience, as there are three appeals arising out of the same judgment, evidence regarding different set of appellants will be discussed and they would be referred to as they were in the Trial Court judgment. EVIDENCE REGARDING ACCUSED NO.1
54. After appreciating the above evidence on record, the Trial Court has found that insofar as accused No.1 is concerned, the eyewitnesses, namely, PWs2 and 4, whose testimonies are to be found at Exhibits 20 and 24 respectively, have deposed that accused No.1 had a knife in his hand and he inflicted a blow with the said knife on the chest of the deceased. The injured witness is stated to have received an injury Page 106 of 189 HC-NIC Page 106 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT between his right hand thumb and finger and sole of his left foot with the same knife. The Trial Court has taken into consideration the deposition of PW1, Dr.Shrirambhai Nagarbhai Patel, who conducted the postmortem of the deceased, where the said Doctor has denied the suggestion made to him in cross that the injury sustained by the deceased could not have been inflicted by the Muddamal knife. The Sessions Court has further found that the opinion of the Doctor that the deceased died due to stab injuries received on a vital organ (heart) are sufficient to cause death and that the said injury could have been caused by the Muddamal knife, as conclusive proof that accused No.1 inflicted the said injury on the deceased.
55. Another aspect that has weighed with the Sessions Court is that the mud sample collected from the scene of occurrence contained blood of `O' Group. The pant and shirt of the deceased had bloodgroup `O' on them. There were traces of human blood on the weapon of offence, which were undetermined. The Trial Court also Page 107 of 189 HC-NIC Page 107 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT considered that the clothes worn by accused No.1 were found to contain traces of human blood of `O' Group. It has held that there is no explanation how the blood of `O' Group came on to the clothes of accused No.1.
56. Though it is a fact that the blood group of the deceased or accused No.1 has not been determined after serological examination, however, the Trial Court has stated that just because the blood group of the deceased has not been determined, it cannot be said that the blood found on the Muddamal articles is not that of the deceased.
57. Insofar as the motive is concerned, the Trial Court has held that there was a dispute regarding money between the deceased and accused Nos.1 to 5.
58. Taking into consideration the above aspects, the Trial Court has arrived at the conclusion that the charges against Accused No.1 have been proved beyond reasonable doubt.
Page 108 of 189 HC-NIC Page 108 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
59. After a close reading and a careful analysis of the evidence on record, it appears that the incriminating pieces of evidence against accused No.1 are;
(a) depositions of eyewitnesses PW2, Rajsinh Kesarsinh Padhiyar, the first informant and brother of the deceased and PW4, Narpatsinh Kesarsinh Padhiyar Rajput, the injured eyewitness who is also the brother of the deceased;
(b) recovery of the knife purportedly at the behest of accused No.1;
(c) blood stains of `O' group on the clothes of accused No.1; and
(d) bloodstains of an undetermined blood group on the knife.
60. Insofar as the first incriminating pieces of evidence in the form of the depositions of PW 2, and PW4 are concerned, they are both real brothers of the deceased and stated to be eye witnesses to the incident. It is a settled principle of law, enunciated by the Supreme Court in a catena of judicial pronouncements that the evidence of interested and related Page 109 of 189 HC-NIC Page 109 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT relatives, though may not be thrown overboard merely on account of the relationship between the parties, however, such evidence is required to be scrutinised with due care and caution.
61. In Jodhan v. State of Madhya Pradesh (supra), relied upon by the learned Public Prosecutor, after noticing several judgments, the Supreme Court has elaborated the following principles:
"26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and Page 110 of 189 HC-NIC Page 110 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT nothing has been elicited in the cross examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy."
(emphasis supplied)
62. In consonance with the above settled position of law, though it cannot be said that the evidence of PW2 and PW4 is required to be discarded merely on the ground of their close relationship with the deceased, however, the Court is bound to carefully scrutinize the same while exercising due caution in order to ascertain whether the said witnesses are reliable and whether their testimony is creditworthy. It is also required to be ascertained whether the witnesses have any motive to make a false implication on account of previous enmity, or not.
63. In Kuldip Yadav And Others v. State of Bihar (supra), relied upon by Mr.Pratik Barot, learned counsel for appellants - original Page 111 of 189 HC-NIC Page 111 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT accused Nos.1 to 5, the extract of which has already been reproduced earlier, the Supreme Court has dealt with a fact situation where the version given by eyewitnesses who are interested on account of their relationship with the deceased and inimically disposed against the accused persons, was found to be highly exaggerated, contrary to each other and not fully corroborated by the medical evidence. In that case, it was found that the prosecution had not presented a true version on most of the material parts and therefore, the witnesses and the material placed on their side did not inspire confidence and could not be accepted on its face value. Of course, minor discrepancies and contradictions may not be sufficient to discredit the entire testimony of interested or related witnesses, however, if the contradictions are material in nature, the testimony is required to be appreciated with utmost care and caution and corroboration would be required on those particulars.
64. The fact situation in the present case is Page 112 of 189 HC-NIC Page 112 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT similar and there are several inconsistencies in the testimonies of both eyewitnesses, who are real brothers of the deceased and who have past enmity with the accused persons. The evidence of PW2 and PW4, therefore, cannot be accepted at face value.
65. PW2 is stated to have reached the spot about ten minutes before the incident actually occurred. This witness has stated in examinationinchief that he was standing at Odhva Bus Stand at 7:00 pm on the day of the incident. He names all the accused persons and states that they were also standing there. He further states that the deceased and PW4 alighted from a jeep and at that point of time, accused No.1 inflicted a knife blow on the left side of the chest of the deceased. This witness does not state that accused No.1 was standing there holding a knife exposed for all to see, nor does he state that accused No.1 took out the knife from his clothes or his person. He has further stated that when accused No.1 was trying to inflict a second blow, PW4 Page 113 of 189 HC-NIC Page 113 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT intervened and the knife hit him. This witness states that he was standing at a distance of thirty to forty feet from the place of incident but had seen it with his own eyes. The deceased started bleeding from his chest and PW2 took him to Palanpur Civil Hospital, where he was declared dead on arrival. The injured witness was given treatment and upon the say of the Doctor at the Palanpur Civil Hospital, PW2 went to the Police Station, Palanpur, and lodged a complaint. In crossexamination, PW2 states that he had no knowledge of the incident but had come to the shop of Khushalbhai in order to purchase a "Beedi". He admits that between his house and the place of incident, there are six to seven "Paan" shops selling "Beedis". If there were six to seven "Paan" shops selling "Beedi" nearby his house, why would PW2 come all the way to a distant shop to purchase a "Beedi"?. It is not natural behaviour. The attempt appears to be to position himself as an eyewitness at a convenient spot. This witness further Page 114 of 189 HC-NIC Page 114 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT contradicts himself by stating that he was going to his field as the electricity had been switched on and he was required to water his crops. He then admits that the way to his field goes from Brahmanvaas and the road which he took is a longer one. Immediately thereafter, he contradicts himself and states that the road he took is shorter. He further admits that his field is in a northernly direction from his house and the place of incident is in an easternly direction. The manner in which the evidence of this witness has emerged in cross examination, it certainly appears that PW2 is not the most credible of witnesses and has taken pains to depose in a manner to show himself as an eyewitness to the incident. The aspect that there are six to seven Paan shops between his house and the spot but he chose the "Paan" shop of Khushalbhai for the purpose of smoking a "Beedi", which shop is much farther and took a longer road to go to the field gains importance as there is no logical explanation for it. Khushalbhai, who would have been an Page 115 of 189 HC-NIC Page 115 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT important independent witness, has not been examined by the prosecution, so there is no independent corroboration of this statement.
66. There are discrepancies in the compliant (Ex.21) given by PW2 as well as his oral evidence. In his complaint, he states that accused Nos.3 to 5 inflicted indiscriminate stick blows upon the injured witness, whereas in his oral testimony, he states that accused Nos.2 to 7 gave stick and pipe blows to the injured witness. He has also stated in his deposition that the deceased was given stick and pipe blows by accused Nos.2 to 5 in an indiscriminate manner. There is also a clear angle of past enmity between the deceased, PW2 and PW4 with accused Nos.1 to 5 due to a money transaction and with accused Nos.6 and 7 due to the field tilled by PW2 being purchased by accused No.6 and a complaint lodged by accused No.7 against the complainant party, two years prior to the incident. PW2 has denied that the villagers of Odhva village had given a complaint against his brothers but in the very next breath, he states that he had Page 116 of 189 HC-NIC Page 116 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT to obtain bail pursuant to such complaint. Though it emerges from the crossexamination of PW2 that the place of incident is a busy thoroughfare where a lot of people come and go, no independent witnesses have been examined. This witness states that when the blow was inflicted by accused No.1, he had shouted for help and Somaji Ranchhodbhai Patel, Kacharaji Magnaji Rajput and other persons had come there. However, none of these persons have been examined. Even though the Court may ignore minor discrepancies, the evidence of this witness, taken as a whole, does not appear to have the spontaneous ring of truth and appears to have been given with the purpose of positioning himself as an eyewitness even though he states that he did not know that the deceased was to come there in a jeep. However, he attributes this knowledge to the accused who are stated to be waiting for the deceased.
67. PW4 Narpatsinh Kesarsinh Padhiyar Rajput is the injured eyewitness who was treated by PW 3, the Medical Officer at the Civil Hospital, Page 117 of 189 HC-NIC Page 117 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Palanpur, immediately after the incident. The injuries on his person were found to be simple and superficial in nature. It is submitted by the learned Public Prosecutor that the presence of the injured witness at the scene of occurrence cannot be doubted as the injuries sustained by him are an inbuilt guarantee of his presence [See: Jodhan v. State of Madhya Pradesh (supra)].
68. There can be no doubt regarding the principle of law that the testimony of a injured witness would stand on a higher pedestal than that of other witnesses as the injury sustained by him would go to prove his presence at the place of occurrence. However, in the same judgment, it has been stated by the Supreme Court that the evidence of an injured eyewitness should be relied upon unless there are strong grounds for the rejection of his evidence on the basis of major contradictions and inconsistencies. Therefore, even the evidence of an injured eye witness requires scrutiny and analysis and there is no rule of law stating that it should Page 118 of 189 HC-NIC Page 118 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT be accepted blindly, as it is.
69. The oral evidence of PW4 (injured eyewitness) differs substantially from the evidence of PW 2, the other eyewitness, insofar as the manner in which the incident took place. PW4 states, at the very inception, that the accused persons cordoned off the deceased and himself and started beating them with sticks and iron pipes. Accused No.1 inflicted a knife blow upon the left side of the chest of the deceased and when PW4 went to save the deceased, all the accused persons surrounded him. According to PW4, accused No.1 inflicted a knife blow between the thumb and index finger of his right hand after which he fell down. Accused No.1 then inflicted a knife blow on the sole of his left foot. It is the specific case of PW4 that he was badly beaten with sticks and pipes on his whole body, including his back, arms and head, by the appellants. The injured witness has deposed that the deceased had also sustained injuries upon his person due to indiscriminate beatings with sticks and pipes Page 119 of 189 HC-NIC Page 119 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT by all the accused persons. The version of PW4 that he and the deceased were cordoned off by the accused does not find support from the evidence of PW2, or even the complaint.
70. PW4 was examined and treated by PW3 Dr.Haresh Narayanbhai Gadhavi. This Doctor has described the injuries sustained by PW4 as being simple and superficial in nature which would heal in about seven to eight days. In his cross examination, Dr.Gadhavi has clearly stated that apart from the two injuries described in the injury certificate at Ex.23, namely, the injury on the sole of the left leg and one between the thumb and index finger of the right hand, no other injuries were found on the body of PW4. The evidence of Dr.Gadhavi, therefore, completely discredits the oral testimony of PW 4, insofar as the injuries stated to have been received by him by stick and pipe blows, are concerned.
71. As held by the Supreme Court in Indira Devi and Ors. v. State of Himachal Pradesh (supra), Page 120 of 189 HC-NIC Page 120 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the proposition of law that an injured witness is generally reliable is, no doubt, correct but even an injured witness must be subjected to careful scrutiny if circumstances and material available on record suggest that he may have falsely implicated some innocent persons as an afterthought on account of enmity or vendetta. In that case as well, the Apex Court found that the medical evidence did not corroborate the allegations made by the victims against the appellants therein. The allegations of the injured witnesses were at odds with the medical evidence, therefore, the Supreme Court found that the credibility of the specific allegations against the appellants therein required serious consideration by the Trial Court and the High Court, which was not given in the said case. The Supreme Court, therefore, extended the benefit of doubt to the appellants. This judgment would be squarely applicable to the factual and evidentiary scenario of the present case.
72. Another judgment relevant to the facts of the Page 121 of 189 HC-NIC Page 121 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT present case is the one in Mahavir Singh v. State of Madhya Pradesh (supra), wherein, the Supreme Court has held that where there is a contradiction between the medical evidence and ocular evidence, though the ocular testimony of a witness has greater evidentiary value visa vis the medical evidence, however, when the medical evidence makes the ocular evidence improbable, that becomes relevant factor in the evaluation of evidence. Moreover, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
73. Applying the above principles of law to the facts and evidence that has emerged in the case in hand, it transpires that PW4 does not emerge as a truthful witness as the medical evidence completely belies his testimony that apart from the two incised wounds inflicted on him by accused No.1, the other appellants also pounced on him, beating him brutally with sticks and pipes all over his body, which has Page 122 of 189 HC-NIC Page 122 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT been specifically described by him, including the parts of the body where he was beaten. No such injuries that could have been inflicted by sticks and iron pipes were found on his body. Even PW1 who conducted the postmortem on the body of the deceased, has clearly stated in crossexamination that had the deceased been beaten by pipes and sticks, there would have been weal marks, fracture or internal injuries. None were found on the body, apart from the injuries attributed to the knife. The credibility of these witnesses gets completely eroded in light of these exaggerations and improvements.
74. From the material on record with regard to PW4, a glaring aspect emerges, which appears to have been completely brushed aside by the Trial Court without any indepth discussion and that is, the history given by the injured witness to PW3 Dr.Haresh Narayanbhai Gadhavi, as recorded in the injury certificate at Ex.23. This certificate certifies that PW4 came to the General Hospital, Palanpur, on 16.05.2008 at Page 123 of 189 HC-NIC Page 123 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT 8:45 pm without a Police Yadi/ Transfer Chit, from the Police Station. The contents of the said certificate have already been reproduced at an earlier stage. It is evident therefrom, that at the very initial point of time, immediately after the incident occurred, when the injured eyewitness came for treatment to Palanpur Civil Hospital, he had stated before Dr.Gadhavi that he was assaulted by an unknown "substance" (may be an incorrect rendering of `weapon' in English) and had specifically taken the name of Ganpat Kastur Mali, and no other person. PW4 has stated that he was beaten when he went to save his brother. This Ganpat Kastur Mali is not an accused person. It is clear from the testimony of PW2, the first informant, that immediately after the assault with the knife on the deceased by accused No.1, the deceased and PW4 were put in a jeep and taken to Palanpur Civil Hospital, where the deceased was declared dead and PW4 was treated for injuries by PW3. The incident is stated to have taken place at 7:00 pm on 16.05.2008. As Page 124 of 189 HC-NIC Page 124 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT per the injury certificate, PW4 was brought before Dr.Gadhavi at 8:45 pm. It is further clarified in the testimony of PW2, that it was upon the advice of the Doctor at the Hospital that he filed the complaint, which means that the complaint was lodged after the history was given by PW4 to Dr.Gadhavi. The FIR has been registered at 9:00 pm. The first version of the eyewitness, who has himself been injured in the incident, has been stated before the Doctor, who is an independent person to whom he had come for treatment. PW4 has clearly stated that he sustained injuries by an "unknown substance" at the hands of Ganpat Kastur Mali and was beaten when he tried to save his brother. PW3 Doctor, in his crossexamination, has clearly stated and maintained that the injured witness has himself given the history to him, which he has recorded. The Doctor has reiterated that the injured witness has not clarified regarding what nature of weapon he was injured by but has stated that he was injured when he was trying to intervene to save Page 125 of 189 HC-NIC Page 125 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT his brother. The Doctor has stood by his stand that the injured witness had stated to him that he was assaulted by an unknown weapon by Ganpat Kastur Mali at Odhva Bus Stand when he was trying to save his brother and that the injured witness had not taken the name of any other person. PW3 Doctor is an independent and neutral witness who has examined the injured witness during the course of his duties. There is no reason to disbelieve him. It is strange that the injured witness would not take the name of accused No.1 as having inflicted the injuries upon him as per the case of the prosecution and his own deposition given after one year and one month after the incident. Why would he take the name of Ganpat Kastur Mali as the person who assaulted him with an unknown weapon, in the very first version given by him, if it was accused No.1 who had inflicted the injuries with a knife? An injured person who is taken to the hospital straight from the scene of occurrence, would naturally divulge the name of his attacker, if he knew it. In the present Page 126 of 189 HC-NIC Page 126 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT case, PW4 certainly knows the names and details of all the accused persons but he has not named any of them while giving the history to the Doctor. The injured person would naturally disclose the name of the attacker and would not shield him. Later on, PW4 disowns the history given by him to the Doctor and completely denies giving any history. At the later stage, this witness has tried to plug the loophole of his having narrated the history to the Doctor by deposing along the lines of the complaint and the general story of the prosecution. It emerges from the record that the complaint was filed after PW4 had given the history to PW3 in the hospital. This aspect regarding the assault by Ganpat Kastur Mali that has remained mysteriously unexplained, further shakes the already wavering trustworthiness of PW4 and casts a grave doubt on the entire episode as narrated by the star prosecution witnesses who are stated to have witnessed the incident.
75. PW15, Dineshsinh Mahavirsinh Chauhan, the Page 127 of 189 HC-NIC Page 127 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Investigating Officer, has admitted in cross examination that PW4 had stated before the Medical Officer (PW3) that Ganpat Kastur Mali had hit him with an unknown weapon when he was trying to save his brother. This further shakes the credibility of PW4. The Investigating Officer further admits that this Ganpat Kastur Mali is not an accused in the case and he did not seek any clarification, either from the injured witness or the Medical Officer, in this regard.
76. The version of the defence regarding the genesis of the incident is that the deceased tried to molest Vasantiben, daughter of accused No.1, when she and her brother DW1 Prakash, were going to the dairy to give milk and when Vasantiben started screaming, Ganpat Kastur Mali and DW1 tried to intervene to save her. At that point of time, the deceased is stated to have taken out a knife from his coat and tried to hit DW1, when PW4, the injured witness, intervened and a scuffle took place. As per the version of DW1, this person called Page 128 of 189 HC-NIC Page 128 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Ganpat Kastur Mali, along with himself, intervened to save Vasantiben from the clutches of the deceased. The injured eyewitness was also very much present and tried to intervene when the deceased took out a knife and tried to inflict blows with it. This version is totally at variance with the version of the prosecution. The defence is required to set up a probable defence not one that stands proved beyond reasonable doubt. It is the prosecution that is required to prove its case beyond reasonable doubt. The material on record, therefore, makes one ponder why the injured witness would take the name of Ganpat Kastur Mali, who is also stated to have been present as per the defence version, as being the person who assaulted him rather than accused No.1. In contradiction thereto, he attributes accused No.1 with having inflicted the knife blow on the chest of the deceased and on his own right hand and sole of left foot in his testimony. In an oblique manner of speaking, PW4 has introduced an element of credibility in the Page 129 of 189 HC-NIC Page 129 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT defence version by mentioning Ganpat Kastur Mali at the initial point of time to PW3 when he came to him for the treatment of his injuries, fresh from the incident. An injured eyewitness would not state falsehood or try to shield the real culprit as per settled principles of law. Therefore, a doubt is created in the mind of the Court by the disclosure at the first instance by PW4, of the name of Ganpat Kastur Mali as being the perpetrator of his injuries.
77. Learned Public Prosecutor has taken pains to submit that the statement made by the injured witness, as recorded by the Medical Officer in the certificate at Ex.23, consists of three disjointed sentences and nothing much turns upon them as they cannot be stated to have any meaning. From the deposition of PW3 Medical Officer, what was stated before him has been clearly deposed by him. He has remained steadfast and unshattered in this regard in his crossexamination. PW3 has categorically stated that the injured witness has himself Page 130 of 189 HC-NIC Page 130 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT given the history to him that he was assaulted by an unknown weapon by Ganpat Kastur Mali at Odhva Bus Stand when he was trying to save his brother. The prosecution could not dislodge or shake the testimony of the Medical Officer, who is a neutral person. Nor is it the case of the prosecution that the certificate at Ex.23 is a false or fabricated one. No clarification is sought and nothing has been done in this regard by the prosecution. We cannot lose sight of the fact that PW3 is also a prosecution witness like PW4. When there is a material discrepancy in the versions given by two prosecution witnesses regarding the same incident, it would naturally go to the root of the matter. A looming doubt arises which clouds the case of the prosecution, which has been unable to dispel the same. The aspect that PW4 has totally denied having given any history to PW3 appears to be a ploy to bring his testimony in line with the version of the prosecution and the complaint. Such behaviour further lends credence to the impression that PW4 is not a Page 131 of 189 HC-NIC Page 131 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT trustworthy witness. An impression is given that somewhere or the other, he has stated falsely in order to hide some material fact. Even though PW4 has tried to fill up the lacunae in the oral evidence given by him, there are discrepancies and contradictions between his testimony and that of PW2 which, though minor in themselves, assume importance in light of the general untrustworthiness of this witness, who appears to take liberties with the truth to such an extent that the entire nature and manner in which the incident took place, changes. The Trial Court has totally overlooked this aspect and has failed to merit it with the scrutiny it deserves, considering the gravity of the charges against the appellants.
78. Apart from the oral evidence of the two eye witnesses PW2 and PW4, the other factor that is found by the Trial Court to incriminate accused No.1 is the recovery of the knife, purportedly at his behest. The Panchnama regarding the discovery of knife at Ex.30 is Page 132 of 189 HC-NIC Page 132 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT signed by two Panch witnesses, one of whom is PW6, Mangalsing Samuji Rajput, who has supported the said Panchnama. The Panchnama gives a very vivid description of the path taken by the Panch witnesses and the Police personnel as guided by accused No.1, who took them to two houses, one of which was opened by him by taking out a key from under a brick. It is stated in the Panchnama that accused No.1 stated that he wanted to show the knife that he had hidden in a cupboard in his house located in his field and, on entering the house, he had taken out the knife from the cupboard. The detailed description of the place where he the house was located, is missing from the deposition of this witness who, in fact, gives a totally different description of being taken to a place where there was a house near a Well. The Well is not mentioned in the Panchnama at all. It has not been deposed by this witness before the Court that accused No.1 took out the key of the house from under a brick, as described in the Panchnama. The Panchnama does Page 133 of 189 HC-NIC Page 133 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT not state that the accused had told the Panch witness or the accompanying Police personnel, that this was the very knife used by him in the crime. Neither has this aspect been deposed by this witness in his testimony. In cross examination, this Panch witness has admitted that he and the deceased belong to the same caste and that his signature was taken in the Police Station after the knife was brought to the Police Station. This part of his testimony casts serious doubt upon his very presence during the discovery of the knife.
79. PW6 Panch witness, has not deposed specifically regarding any disclosure statement made by accused No.1, leading to the discovery of knife. Nor has he described the exact words used by accused No.1, as is required under Section 27 of the Evidence Act. This witness has also not deposed regarding the exact spot or the manner in which the knife was seized. In fact, the latter part of his testimony in crossexamination shatters his credibility and renders his deposition worthless. Page 134 of 189 HC-NIC Page 134 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
80. Though PW15, the Investigating Officer has, in his deposition, tried to cover up this aspect, even he has not stated that accused No.1 had made a statement before him regarding his desire to disclose the whereabouts of the knife. Nor has he reproduced the exact words used by accused No.1 or ascertained that the accused No.1 had led the investigating team to discover the fact of the knife of his own free will and volition. From the Panchnama at Ex.30 and the depositions of PW6 and PW15, the discovery of the knife is at total variance to the requirement of Section 27 of the Evidence Act and cannot be accepted as an incriminating piece of evidence against accused No.1.
81. In this regard, reference may be made to the judgment of the Supreme Court in Ram Sunder Sen v. Narender alias Bode Singh Patel (supra), the relevant extract of which has already been reproduced hereinabove.
82. It is now a wellsettled principle of law reiterated in a catena of decisions that before Page 135 of 189 HC-NIC Page 135 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT relying upon the evidence of discovery under Section 27 of the Evidence Act, the exact words of the statement attributed to the accused is required to be brought on record. This aspect is required to be deposed by the Investigating officer and the Panch witnesses in order to show that the discovery of the fact was made willingly at the behest of the accused person who had pointed out the place of concealment of the weapon stated to have been used in the crime by him. This proposition of law is illustrated by the judgment of the Supreme Court in the case of State of Maharashtra v. Damu Gopinath Shinde and others - 2000 CR.L.J. 2301, in the following terms.
"36. The basic idea embedded in S. 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature, but if it Page 136 of 189 HC-NIC Page 136 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of Privy Council in Pulukuri Kottayya v. Emperor, AIR 1947 PC 67 : (1947 (48) Cri LJ 533) is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
37. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered." But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by P.W. 44 is that A3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motor cycle."
83. Another judgment on the point is that in the Page 137 of 189 HC-NIC Page 137 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT case of Bodhraj alias Bodha And Others v. State of Jammu And Kashmir - (2002)8 SCC 45. The Supreme Court held thus:
"18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short 'the Evidence Act') is by way of proviso to Ss. 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by the this Court in Delhi Admn. v. Balakrishan (AIR 1972 SC 3) and Md. Inayatullah v. State of Maharashtra (AIR 1976 SC 483). The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that Page 138 of 189 HC-NIC Page 138 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. S. 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under S. 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is Page 139 of 189 HC-NIC Page 139 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT otherwise admissible becomes inadmissible under S. 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under S. 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in S. 27 of the Evidence Act is the Doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled Page 140 of 189 HC-NIC Page 140 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Danu Gopinath Shinde and others (2000) Cri LJ 2301). No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered." But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
84. In the present case, the requirements of Section 27 of the Evidence Act leading to the discovery of the knife have not been fulfilled as the exact information and words used by accused Page 141 of 189 HC-NIC Page 141 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT No.1 while in custody, leading to the discovery of the knife, have not come on record. A mere statement that accused No.1 led the Panch witnesses and Police to the place where he had concealed the article of offence would not meet with the requirements of law. The recovery of an object at the instance of the accused would only gain relevance if it is established by his own statement and by other evidence that the object recovered is connected to the accused and the offence with which he is charged. A clear connection between the object recovered and the accused as well as the commission of the offence with the said object by the accused, is required to be established before the accused can be charged for an offence under Section 302 IPC by using such recovery as an incriminating evidence.
85. In Mohmed Inayatullah v. The State of Maharashtra - (1976)1 SCC 828, the Supreme Court, after discussing the provisions of Section 27 of the Evidence Act, has held as below:
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HC-NIC Page 142 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT "11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The Section says:
"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved."
12. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Sec. 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery Page 143 of 189 HC-NIC Page 143 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to that fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably" "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered"
(sic) (and?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to Page 144 of 189 HC-NIC Page 144 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the fact discovered."
(emphasis supplied)
86. Applying the abovequoted settled principles of law to the oral and documentary evidence regarding the recovery of the knife stated to be the weapon of offence in the present case and after analysing the evidence in light of the requirements of law, we cannot but state that the evidence on record regarding the recovery of the knife falls woefully short of meeting the exacting standards required to incriminate accused No.1 on the basis of this evidence. The reason for this conclusion is that it transpires from the evidence of the Panch witness as well as the Investigating Officer that there is no deposition regarding the exact statement made by accused No.1 leading to the discovery of a relevant fact, in this case, the knife. The nature of the information supplied by accused No.1 and the exact words used by him from which it can be gauged what his intention was, have not been stated by either of the two prosecution Page 145 of 189 HC-NIC Page 145 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT witnesses. The the discovery of the knife, therefore, not being in consonance with the requirements of Section 27 of the Evidence Act, falls to the ground and cannot be relied upon as a corroborative piece of evidence in order to conclusively prove the Charge under Section 302 against accused No.1.
87. The next aspect is regarding the blood stated to have been found on the knife. When the recovery of the knife, itself, does not meet with the requirements of law, the aspect of the blood found on it rather pales into insignificance. However, even then, it can be seen from the Serological Report that the nature of the blood on the knife could not be determined, therefore, it cannot be assumed that the blood on the knife is that of the deceased. In any case, it is an accepted position that the bloodgroup of the deceased was not determined and it has been assumed that his blood is of `O' Group only because blood of this group was found on his clothes. The bloodgroup of the injured witness has also not been determined. Page 146 of 189 HC-NIC Page 146 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT It could be possible that his blood is also of `O' Group. Blood of `O' Group was found in the mud samples taken from the scene of occurrence and the clothes of accused No.1. However, this aspect cannot attain much significance in the absence of the determination of the bloodgroup of the deceased.
88. Regarding the failure to ascertain the blood group of the deceased, reference may be made to the judgment of the Supreme Court in Prakash v. State of Karnataka (supra), the relevant extract of which has already been reproduced hereinabove.
89. Insofar as the clothes worn by accused No.1 at the time of the incident are concerned, they are described in the Panchnama of physical verification at Ex.59. It may be kept in mind that the incident took place on 16.05.2008, whereas accused Nos.1 and 2 were taken into custody on 20.05.2008, four days later. When he was taken into custody, accused No.1 is stated to have been wearing a light blue coloured Page 147 of 189 HC-NIC Page 147 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT shirt and dark blue coloured pant. Though the clothes worn by him have been described in detail in the Panchnama, there is absolutely no mention of any bloodstains on the said clothes. It has been specifically stated in the Panchnama that accused No.1 had told the Panch witnesses that he was wearing the same set of clothes during the incident. Insofar as accused No.2 is concerned, he is stated to have been wearing a white shirt with a design and a black pant with a light design on it. It has been specifically stated in the Panchnama that no blood stains were to be seen on the clothes of both the accused persons. Nowhere in the Panchnama has it been stated that the clothes of accused No.1 have been seized. If the clothes worn by accused No.1 have not been seized, and there were no bloodstains on them, it remains unexplained how the same clothes, bearing the same description, were sent for examination to the FSL and suddenly blood stains of `O' group blood appeared on them. Learned Public Prosecutor has painstakingly Page 148 of 189 HC-NIC Page 148 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT tried to explain that though it may not have been specifically mentioned in the Panchnama that the clothes worn by accused No.1 were seized, however, they were in fact seized and sent to the FSL under a "Ravangi Nondh"
(Forwarding Note) which has been exhibited at Ex.58. The clothes of accused No.1 are Articles Nos.6 and 7 in the said Note. However, even in his testimony, PW15, the Investigating Officer, has not stated that he had seized the clothes worn by accused No.1 and sent them to the FSL. In this view of the matter, a nagging doubt is cast upon the aspect of the clothes of accused No.1, which were not seized as per the evidence on record, being sent to the FSL and suddenly appearing with blood of `O' Group on them, especially when it is specifically stated in the Panchnama that the said clothes did not have any bloodstains on them. The "Ravangi Nondh", by itself, cannot be pressed into service as a substantive piece of evidence to fill in this lacuna. How, and in what manner, the clothes of accused No.1 came to be sent to Page 149 of 189 HC-NIC Page 149 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the FSL without being seized and how blood stains suddenly appeared on them, which were not present when accused No.1 was arrested, remains an unexplained mystery, to the detriment of the case of the prosecution.
90. Another aspect regarding the clothes of accused No.1 gains significance which is that, the incident took place on 16.05.2008 and accused Nos.1 and 2 were arrested on 20.05.2008. It does not appear to be natural or probable that accused No.1 would be wearing the same clothes he had worn at the time of the incident for four days and that too, in the hot month of May. This aspect becomes even more improbable when one considers the claim of the prosecution that the clothes were bloodstained. Would it be natural behaviour for a person accused of murdering somebody to roam around for four days after the incident, wearing the same blood stained clothes like a badge proclaiming his involvement? The answer would be in the negative. No explanation, leave alone a reasonable explanation comes forth from the Page 150 of 189 HC-NIC Page 150 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT prosecution to explain these discrepancies.
91. Learned Public Prosecutor has tried to cover up this aspect by submitting that accused No. 1 was on the run. If he was on the run he would be interested in concealing his involvement and not making it obvious. It is extremely difficult to believe that a person involved in a serious crime would be found still wearing the same bloodstained clothes four days after the incident, as though to point out his guilt to the world at large. This issue is squarely covered by the judgment of the Supreme Court in Khalil Khan v. State of M.P. (2003)11 SCC 19, the relevant extract of which is reproduced hereinbelow:
"7. If this part of the evidence of the prosecution is to be excluded then, in our opinion, there is no sufficient material to hold the appellant guilty. Be that as it may, we may refer to the recovery part relied upon by the Courts below. We notice that one of the witnesses to the recovery has not supported the prosecution case. That apart the incident in question had taken Page 151 of 189 HC-NIC Page 151 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT place on 6th April, 1986 and the accused was arrested only on 11th April, 1986, nearly four days thereafter. We find it extremely difficult to believe that a person who is involved in such a serious crime like murder would still be wearing clothes which are bloodstained even four days after the murder which fact we find is opposed to normal human conduct. In this background, the evidence of the hostile witness that the recoveries were made at the police station assumes importance. We think it is not safe to place reliance on this part of the prosecution case also."
(emphasis supplied)
92. From the above material on record, it would not be safe to rely upon the circumstance of the clothes of accused No.1 being found to be spattered with blood of `O' Group, which is purportedly the bloodgroup of the deceased, though there has been no determination of the bloodgroup of the deceased.
93. It, therefore, follows that the aspect regarding the bloodstained clothes of accused No.1 which has been considered as an incriminating Page 152 of 189 HC-NIC Page 152 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT circumstance against him, has not been specifically put to him. Such a circumstance, to explain which accused No.1 was not given any opportunity, cannot be legally used against him to his prejudice.
94. In this regard, reference may be made to the judgment of the Supreme Court in Tara Singh v. The State (supra), the relevant extract of which has already been reproduced above. The requirement of law is that when there are incriminating circumstances against an accused, he must be questioned separately about each material circumstance which is intended to be used against him. The questioning must be in such a form that even an illiterate or ignorant person would be able to understand it and be in a position to explain it. Each and every material circumstance is required to be put to the extent simply and separately and not in one general statement. This principle of law has been further corroborated in Prakash v. State of Karnataka (supra), also referred to earlier.
Page 153 of 189 HC-NIC Page 153 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT
95. It transpires from the statement of accused No.1 under Section 313 of the Code that the circumstance of human blood of `O' Group found on the pant of accused No.1, which is an incriminating circumstance against him, same has not been brought clearly to his knowledge in the present case. Accused No.1 is, therefore, not expected to offer any explanation to such incriminating circumstance. Question No.31, which speaks of Exhibits 61 and 62, is a question framed in a general manner as to whether accused No.1 wants to offer any answer or explanation to the FSL report at Ex.61 or the Serological Report at Ex.62? To this, accused No.1 answered by stating that it is a false report. The specific incriminating circumstance regarding the blood of the deceased being found on the pant of accused No.1 was never put to him. It can, therefore, be said that this negligence has caused serious prejudice to accused No.1 insofar as the statement under Section 313 of the Code is concerned. This requirement is not an empty Page 154 of 189 HC-NIC Page 154 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT formality and much importance has been attached to it, as is clear from the judgments of the Supreme Court referred to hereinabove.
96. From the above discussion, it transpires that the evidence of the two eyewitnesses PW2 and PW4, cannot be said to be creditworthy to the extent of basing the conviction of accused No.1 solely on their testimony. Even though the testimony of these witnesses may not be thrown overboard only because they are related to the deceased, however, upon an independent and careful scrutiny of their evidence, they are not found to be trustworthy witnesses for reasons already discussed hereinabove. The recovery of the knife does not meet with the requirement of Section 27 of the Evidence Act and neither is the undetermined bloodstain on the knife in any manner connected to the deceased whose bloodgroup has not been ascertained. The clothes of accused No.1 have not been seized as per the Panchnama or the deposition of the Investigating Officer and are stated to contain no blood stains in the Page 155 of 189 HC-NIC Page 155 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Panchnama. How the said clothes reached the FSL without being seized and appeared with blood of `O' Group is an unexplained lapse on the part of the prosecution.
97. It may be true that investigative lapses on the part of the prosecution may not go to the root of the matter, however, cumulatively, if all the factors discussed hereinabove are sufficient to strengthen the already looming and everpresent doubt created by PW4 regarding the genesis of the incident, as discussed in the history given by him first in point of time after the occurrence, then it cannot be said that the prosecution has been successful in proving its case beyond a reasonable doubt, which is the requirement of law. In this regard, reference may be made to the judgment of the Supreme Court in Bhagwan Jagannath Markad And Others v. State of Maharashtra - (2016)10 SCC 537, wherein, the Supreme Court has held as below:
"18. It is accepted principle of criminal Page 156 of 189 HC-NIC Page 156 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions - (i) when a person feels absolutely certain of a fact - "believe it to exist" and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability"
98. In the present case, insofar as accused No.1 is concerned, we are unable to accept, on the basis of the evidence brought on record as discussed hereinabove that the prosecution has been successful in proving its case beyond reasonable doubt.
Page 157 of 189 HC-NIC Page 157 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT EVIDENCE REGARDING ORIGINAL ACCUSED NOS.2 TO 5 (APPELLANTS OF CRIMINAL APPEAL NO.319/2012)
99. In his deposition, PW2 (first informant) has stated that appellant accused Nos.2 to 5 were present at the spot with sticks and pipes in their hands. No specific role has been attributed to the said accused persons. In the examinationinchief, PW2 has stated that appellants Nos.2 to 5 beat PW4 with pipes and sticks and caused injuries on his hands, legs and back.
100. It is not stated by PW2 that appellant accused Nos.1 to 5 inflicted any sort of injuries upon the deceased with pipes and sticks but has only stated that appellant No.1 inflicted a knife blow on the chest of the deceased. Therefore, from the testimony of this witness, nothing emerges regarding any blows given by accused Nos.2 to 5 to the deceased. The medical evidence reveals that PW4 who is stated to have received injuries with pipes and sticks on his hands, legs and back by accused Nos.2 to 5 had no other injuries on his person, except the Page 158 of 189 HC-NIC Page 158 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT two injuries caused by a sharp cutting weapon. No other injuries were found on the body of the injured witnesses, as is clear from the medical certificate Ex.23. The testimony of PW2 regarding infliction of pipe and stick blows by accused Nos.2 to 5 on PW4 is belied by the medical evidence. Similarly, the postmortem report does not show that there were any other injuries as could have been caused by pipes and sticks on the body of the deceased. PW1, Dr.Shrirambhai Nagarbhai Patel, who conducted the postmortem of the deceased, has stated in his crossexamination that had blows been given with weapon such as sticks and pipes, then weal marks would have been present and fracture could have resulted from such blows. There would also be internal injuries. He has clearly stated that apart from the injury on his chest, the deceased had no other marks of injuries on his body and had he been beaten with sticks and pipes, corresponding injuries on his body would have been found. In further crossexamination on behalf of accused No.7, the Doctor has Page 159 of 189 HC-NIC Page 159 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT reiterated that no such injuries that could be caused by a stick were found on the body of the deceased. The medical evidence, therefore, belies the ocular evidence and in a case where the eyewitnesses are not found to be of the highest credibility, as in the present case, where their testimonies are riddled with inconsistencies and contradictions, the medical evidence would have greater value. This principle of law has been enunciated in the judgment of the Supreme Court in the case of Mahavir Singh v. State of Madhya Pradesh (supra), wherein it has been held that though the ocular testimony of witness has greater evidentiary value visavis medical evidence, when the medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of evaluation of evidence. Where the medical evidence goes so far that it completely rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved , as in the present case. This principle of law applies Page 160 of 189 HC-NIC Page 160 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT squarely to the ocular testimony in this case as the medical evidence has completely ruled out the possibility of the ocular evidence being worthy of acceptance.
101. The oral evidence of PW2 is also at odds with the complaint given by him. In the complaint, this witness refers to the original accused Nos.2 and 6 having given indiscriminate pipe blows on the person of the deceased, which version does not tally with his oral evidence where he does not attribute any overt act or role to original accused Nos.2 and 6. Insofar as the injuries sustained by PW4 are concerned, it is stated in the complaint that original accused Nos.3 to 5 have inflicted indiscriminate stick blows upon the injured witness, whereas in the oral evidence on oath before the Court, he attributes the role of causing injuries to the injured witness by original accused Nos.2 to 7 with the help of sticks and pipes. This part of his deposition is not in consonance with the narration in the complaint. In view of the above contradictions Page 161 of 189 HC-NIC Page 161 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT in both the versions given by the same witness, not only has the credibility of PW2 been eroded but a doubt is also cast regarding his very presence as an eyewitness and whether, upon his say, original accused Nos.2 to 5 can be roped in to face a charge as serious as murder, by making them liable under Section 149 IPC.
102. The version of the injured eyewitness, PW4, in his examinationinchief, is in contradiction to that given in the compliant. From the very inception, PW4 comes out with a case that all the accused persons cordoned off him and the deceased and inflicted indiscriminate blows with iron pipes and sticks upon both of them. To the extent that he states that original accused No.1 inflicted a knife blow on the chest of the deceased, his testimony is in consonance with that of PW2. However, with regard to the injuries upon his person, he states that the moment he tried to rescue the deceased from further beating, all the accused persons barged towards him and in Page 162 of 189 HC-NIC Page 162 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the event he sustained a knife injury between his right hand thumb and index finger at the behest of accused No.1. He fell down on the ground and received an injury with the knife in the left foot. In examinationinchief, this witness refers to all accused persons as having inflicted stick and pipe blows on his whole body, specifically mentioning his back, legs and hands. This version does not get any corroboration from the medical evidence. On the contrary, the medical evidence belies this part of the testimony of PW4. From the above contradictions and discrepancies in the testimonies of two eyewitnesses, it appears that for reasons of their past enmity, they are trying to implicate accused Nos.1 to 5 who belong to the same family.
EVIDENCE AGAINST ORIGINAL ACCUSED NOS.6 AND 7 (APPELLANTS OF CRIMINAL APPEAL Nos.326/2012 and 404/2012)
103. Original accused Nos.6 and 7 do not belong to the same family as accused Nos.1 to 5. In fact, accused No.6 belongs to a different community than the other accused persons and has no Page 163 of 189 HC-NIC Page 163 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT connection with accused Nos.1 to 5. PW2 has admitted during his crossexamination that in the past, he had procured a field of Mohanbhai Bhagwanbhai for the purpose of cultivation on sharing basis. This very field was purchased by accused No.6, because of which, PW2 had a grievance and nursed bitterness towards original accused No.6. This, perhaps, could be the reason for the implication of accused No.6 as one of the offenders. The motive of money being lent by the complainant party to accused Nos.1 to 5 does not apply to accused No.6, who had no motive to commit the offence. No connection is established insofar as accused No.6 is concerned.
104. As regards accused No.7, though he belongs to the same caste as the deceased, PW2 has stated that accused No.7 has no connection with accused Nos.1 to 6. In his crossexamination, PW2 has admitted that accused No.7 resides separately from the other accused persons. His fields are also different and he is independently cultivating his lands. This Page 164 of 189 HC-NIC Page 164 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT witness further admits that about two years prior to the incident, accused No.7 had lodged a complaint against his family members because of which his family members had to procure bail. He also admits to nursing a past enmity with accused No.7 since two years prior to the incident, which could be a possible reason for him to implicate accused No.7 in the crime.
105. In his testimony, PW2 has stated that accused Nos.6 and 7 were also standing there with the other accused persons. However, in his examinationinchief, he attributes the indiscriminate beating with sticks and pipes by them to the injured witness. In his complaint, PW2 states that original accused Nos.2 to 6 inflicted indiscriminate pipe blows on the person of the deceased, which aspect he has not stated in his oral evidence where he does not attribute any sort of overt act to accused Nos.6 and 7. PW4 attributes the role of causing injuries upon his person by accused Nos.6 and 7 with sticks and pipes which is also not in consonance with the narration in the Page 165 of 189 HC-NIC Page 165 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT complaint.
106. A very important aspect emerges from the testimony of PW4, the injured eyewitness. This witness was subjected to extensive cross examination at the behest of original accused persons. Though he has tried to maintain the story regarding the presence of accused Nos.1 to 7 at the spot armed with deadly weapons and the beating with pipes and sticks by them upon his person and that of the deceased, however, in the last portion of his testimony, he has categorically admitted that at the time of the incident, accused No.7 was not present and that he has stated falsely regarding appellant No.7. This statement of PW4 in the vernacular, has been checked up by us from the original record and proceedings and found to be recorded correctly. It is a clear statement, the meaning of which is that it is true that at the time of the incident, accused No.7 was not present. This means that the truth has finally emerged from the mouth of PW4. Even if this statement cannot be said to completely dislodge the case Page 166 of 189 HC-NIC Page 166 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT of the prosecution, however, it is sufficient to add to the doubts already raised by the collective oral evidence on record of the eye witnesses and the other documentary evidence such as the injury certificate regarding the injured witness where the history has been narrated by him and the socalled recovery of the knife, the Serological Report and the Panchnama of the physical verification and arrest of accused Nos.1 and 2.
107. The prosecution has not pleaded any motive which could have led accused Nos.6 and 7 to commit the offence. The said accused have nothing to do with accused Nos.1 to 5 as has been brought on record by the eyewitnesses themselves. On the contrary, it is the deceased and the eyewitnesses who had an axe to grind against accused Nos.6 and 7, as has been admitted by them and discussed hereinabove.
108. The serious inconsistencies in the deposition of the injured eyewitness regarding accused No.7 makes it hazardous to rely on the Page 167 of 189 HC-NIC Page 167 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT testimony of such a witness to convict the accused persons, more particularly, accused No.7, especially when his version is belied by the medical evidence.
109. In this regard, reference may be had to the judgment of the Supreme Court in Indira Devi and Ors. v. State of Himachal Pradesh (supra) wherein the Supreme Court has held that the testimony of an injured eye witness, though normally should be relied upon, however, must be subjected to careful scrutiny if circumstances and material on record suggest that he may have falsely implicated some innocent persons as an afterthought on account of enmity and vendetta. This appears to be precisely the case in the present appeals and a false implication cannot be ruled out.
110. Regarding inconsistencies in the statements of the witnesses, reference may be made to the case of Suraj Mal v. The State (Delhi Administration) (supra), the relevant extract of which has already been reproduced Page 168 of 189 HC-NIC Page 168 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT hereinabove.
111. The Panchnama at Ex.33 has been drawn up regarding the recovery of sticks at the behest of accused Nos.3 and 4. It is stated therein that the said persons have voluntarily produced the sticks and handed over the the sticks. This Panchnama has been signed by two Panch witnesses. Only one of the two Panch witnesses has been examined as PW8. He has turned hostile and not supported the case of the prosecution. Though the Investigating Officer denies the suggestion that the said weapons were not recovered from the above accused, however, it does not appear that the sticks were sent for forensic examination. The recovery of weapons at the behest of accused Nos.6 and 7 has also not been proved. IMPLICATION OF ACCUSED NOS.2 TO 7 WITH THE AID OF SECTION 149
112. The above discussion leads us to the crucial aspect regarding the implication of the accused persons with the aid of Section 149 of the IPC. The only overt role that has been consistently Page 169 of 189 HC-NIC Page 169 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT attributed, is to accused No.1, who is stated to have inflicted the knife blow on the chest of the deceased. Though the other accused persons are stated to have given indiscriminate stick and pipe blows to the injured witness and the deceased, as discussed earlier, no such marks were found on the body of either the deceased or the injured witnesses. The medical evidence, therefore, does not support their oral testimony. Accused Nos.2 to 7 have been made liable for the crime solely on the basis of their presence at the spot, as stated by the eyewitnesses, which testimony has not received any corroboration from other material sources. The deceased received the fatal injury with the knife and the injured witness also received two injuries, though simple in nature, with a knife. The knife is attributed to accused No.1. The role of giving continuous blows with sticks and pipes which has been attributed to accused Nos.2 to 7.
113. It is a settled position of law that before convicting the accused with the aid of Section Page 170 of 189 HC-NIC Page 170 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT 149, the Court must give clear findings regarding the nature of the common object and also that the common object was an unlawful one. In the absence of such findings, as also any overt act on the part of the accused persons, the mere fact that the accused were armed with weapons would not be sufficient to prove the common object.
114. The above principle of law has been succinctly and clearly laid down by three Honourable Judges of the Supreme Court in Bhudeo Mandal And Others v. State of Bihar [(1981)2 SCC 755], the Supreme Court has held that before convicting the accused with the aid of Section 149 IPC the Court must give clear findings regarding the nature of the common object and that the object was unlawful. The relevant extract is reproduced below:
Section 149 creates a specific offence and deals with the punishment of that offence. Whenever the High Court convicts any person or persons of an offence with the aid of Section 149 a clear finding regarding the Page 171 of 189 HC-NIC Page 171 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149, IPC the essential ingredient of Section 141, IPC must be established.
(Para 1) In the present case there is no overt act attributed to any of the appellants on the deceased and the mere fact that the appellants were armed with lathis by itself would not prove that they shared the common object with which the main accused was inspired. Before the High Court could have upheld the conviction of the appellants under Section 326/149 of the Indian Penal Code, it should have recorded a clear finding as to what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt. Thus there is no material to support the conviction of the appellants under Section 326/149.
(Para 1)
115. As stated by the Supreme Court in the above judgment, a clear finding is required to be Page 172 of 189 HC-NIC Page 172 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT recorded regarding the nature of the common object, as also to show that the object was an unlawful one before any conviction can be recorded with the aid of Section 149. The essential ingredients of Section 141 must stand established. Section 149 creates a specific offence and deals with the punishment for that offence. There has to be an assembly of five or more persons having a common object of doing of acts by the members of that unlawful assembly in prosecution of that object. The emphasis would be on the commonality of the object.
116. In the present cases, there is no material on record regarding the common object shared by the assembly or any finding that the common object was unlawful. No evidence has come forth to show the accused Nos.2 and 7 were aware that accused No.1 had a knife or that he intended to inflict knife injuries on the deceased or even to take his life. Accused Nos.2 to 7 are supposed to have been armed with sticks and pipes, the recovery of which is not proved.
Neither have any injuries inflicted with those Page 173 of 189 HC-NIC Page 173 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT weapons been found on the body of the deceased and the injured witness. What was the nature of the common object, is not proved. Nor is it proved that all the accused shared common object of killing the deceased, when only one of them had a knife.
117. In the judgment under challenge, there is no discussion and no findings, whatsoever, that the accused persons had gathered there by forming an unlawful assembly with the shared common object of killing the deceased. The learned Judge has straightaway convicted all the accused persons with the aid of Section 149, but has not dealt with the matter in accordance with the strict requirements of law, as laid down in the above judgment. As there is no discussion and no findings to this effect, therefore, it is not clear how, and by what process of analysis, the liability under Section 149 of the IPC has been fastened upon accused Nos.2 to 7. In this regard, it can be said that the judgment under challenge is perverse.
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118. In Najabhai Desurbhai Wagh v. Valerabhai Deganbhai Vagh And Others - (2017)3 SCC 261, the Supreme Court was dealing with an appeal from the judgment of the High Court wherein some of the accused therein were found guilty of offences punishable under Section 302 read with Sections 149 and 34 of the IPC. The Supreme Court referred to other decisions, including its own decisions and held that the common object to commit murder cannot be inferred only on the basis that weapons carried by the accused persons were dangerous, but a holistic view is required to be taken of all the facts.
119. In a recent judgment of the Supreme Court in Vijay Pandurang Thakre & Ors. v. State of Maharashtra (supra), the Supreme Court has held that mere possession of small sticks by the accused is not clear evidence of any conspiracy or common object. The necessary extract of the judgment has already been reproduced hereinabove.
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120. From the evidence adduced in the present case, apart from the oral testimony of the eye witnesses, who are real brothers of the deceased, no cogent or credible evidence has emerged to show that accused Nos.2 to 7 had assembled at a particular place with the common object of murdering the deceased. It does not emerge from the evidence on record that accused Nos. 2 to 7 were even aware that accused No.1 had a knife on his person. It is not the case of the prosecution that the said accused was standing with an open knife in his hand, for all passing by to see. No independent witnesses have been examined though the place of incident was a busy thoroughfare. It cannot, therefore, be assumed that accused Nos.2 to 7 had any knowledge regarding the possession of the knife by accused No.1 or shared the object of infliction of a fatal knifeblow on the deceased, if that was the intention of accused No.1. The aspect of common object and mutual knowledge of the said object is missing in the present case.
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121. Mr.Mitesh Amin, learned Public Prosecutor, has relied upon a judgment of the Supreme Court in Kattukulangara Madhavan v. Majeed and Others (supra) in this regard, wherein it is stated that the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly and that when the prosecution establishes such presence, it is the conduct of the accused that would determine whether he continued to participate in the unlawful assembly with the intention to fulfil the object of the assembly, or not. This principle of law is not disputed as a general proposition that may be kept in mind while scrutinising the evidence regarding common object. The facts of each case would have to be independently analysed in light of the above principles of law.
122. The nature of the evidence brought on record by the prosecution in the present case is not sufficient to conclude that any conspiracy was hatched by the accused with the intended common Page 177 of 189 HC-NIC Page 177 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT object of causing the death of the deceased, especially, when the motive attributed to accused Nos.1 to 5 was not shared by accused Nos.6 and 7 at all. It cannot be assumed on the basis of the testimonies of PW2 and PW4, which are riddled with contradictions and inconsistencies, that accused Nos.2 to 7 had assembled there with the intention of causing the murder of the deceased, or were in the knowledge that accused No.1 intended to murder the deceased, which object they shared. It cannot, therefore, be assumed without any findings in this regard, that accused Nos.2 to 7 were members of an unlawful assembly and had committed any act in the prosecution of the common object when, in the first place, the common object has not been established. It further cannot be said that accused Nos.2 to 7, knew what nature of act was likely to be committed in prosecution of the object. In addition thereto, the ocular evidence regarding beatings given by accused Nos.2 to 7 with sticks and pipes to the deceased and PW4 is Page 178 of 189 HC-NIC Page 178 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT not borne out by the medical evidence of two Doctors, namely PW1 who conducted the post mortem on the body of the deceased and PW3, who treated the injured witness. The participation of accused Nos.2 to 7 in the incident, leave alone the common object, is highly doubtful as the two prosecution witnesses do not appear to be either truthful or reliable.
123. As no clear findings regarding the common object of the assembly have been given, as per the requirements of law, it cannot be said that the ingredients of Section 141, which must be satisfied before recording a conviction under Section 149 of the IPC, have been established in the present case.
124. It has been submitted before us by Mr.Pratik B. Barot, learned counsel for the appellants that the Charge has been defectively framed. Though his submission appears to be borne out from a perusal of the Charge, however, it does not appear that this deficiency was pointed out to Page 179 of 189 HC-NIC Page 179 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the Court at the relevant stage. This aspect no longer has much relevance at this stage, in view of the detailed discussion on various other aspects of the matter.
SUMMING UP AND CONCLUSION
125. To sum up and conclude briefly, on the basis of the discussion made hereinabove, we do not find the eyewitnesses, PW2 and PW4, both of whom are brothers of the deceased, to be either credible or truthful. Nor do the testimonies of these witnesses, which are strikingly contradictory, inspire confidence to the extent of basing the conviction of the appellants upon them. The recovery of the knife at the behest of accused No.1 does not meet with the requirements of Section 27 of the Evidence Act, therefore, it cannot be used as an incriminating circumstance against accused No.1. The knife, which was sent for forensic examination, is found to have blood of an undetermined group upon it. This circumstance does not connect it to the commission of the Page 180 of 189 HC-NIC Page 180 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT offence. The bloodgroup of the deceased has not been established and only on the basis of the Serological Report that the blood found on his clothes is of `O' Group, it has been assumed that the bloodgroup of the deceased is `O' Group. The clothes of accused No.1 have not been seized, as is clear from the Panchnama at Ex.59. The said Panchnama clearly states that no blood stains were found on the clothes of accused No.1. It remains unexplained how the said clothes, stated to have been worn by accused No.1 at the time of the commission of the offence, could have reached the Forensic Science Laboratory and were found to contain blood of `O' Group. The Investigating Officer, in his deposition, does not state anything regarding the seizure of the clothes. It is quite improbable and unbelievable that the deceased would be wearing the same set of clothes, with bloodstains on them, for four days. The incident took place on 16.05.2008 and accused Nos.1 and 2 were arrested on 20.05.2008. The blood of `O' Group found on the Page 181 of 189 HC-NIC Page 181 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT clothes of accused No.1 is an incriminating piece of evidence but has not been specifically put to him while recording his statement under Section 313 of the Code, therefore, he has been unable to provide any explanation, causing serious prejudice to him. His inability to explain has itself been considered as an incriminating circumstance by the Trial Court.
126. At the very first instance, the injured witness, who was taken to Palanpur Civil Hospital for treatment immediately after the incident, gave the history to the Doctor, PW3, that he was assaulted with an unknown weapon by one Ganpat Kastur Mali when he was trying to save his brother, the deceased. This history has been given by PW4 even before the complaint was lodged by PW2. Though at a later stage, in his deposition, PW4 has completely denied and disowned that he had given the history to PW3, however, PW3, who is a neutral and independent witness, has stood steadfast in his testimony in this regard, which has not been shattered in cross Page 182 of 189 HC-NIC Page 182 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT examination. He has maintained that this history was given to him by PW4 himself and he has recorded it in the medical certificate.
127. A serious doubt persists regarding the true genesis of the incident. There was no reason for PW4 to have taken the name of another person if he knew it was accused No.1 who had inflicted the knife blow on his brother and himself, as later stated by him in his deposition. In view of the above analysis regarding the material on record implicating accused No.1, we do not find that the case against the said accused is established beyond reasonable doubt. On the basis of such shaky evidence, it would not be safe to convict accused No.1 for a charge as serious as murder.
128. The role attributed to accused Nos.2 to 7 is not borne out from the medical evidence, which makes the ocular evidence untrustworthy. Considering the aspect that there are several contradictions and discrepancies in the versions of the eyewitnesses, coupled with the Page 183 of 189 HC-NIC Page 183 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT angle of past enmity, it cannot be said that the formation of an unlawful assembly with the common object of murdering the deceased has been proved by recording clear findings, or that all the accused persons shared that common object. The very presence of accused Nos.2 to 7 at the spot is not beyond the shadow of doubt, especially when PW4 himself states that accused No.7 was not present at the time of the incident.
129. Learned Public Prosecutor has laid emphasis on the promptness with which the FIR has been lodged by PW2. It has come in the evidence of PW2 that after the incident, he went to the Civil Hospital, Palanpur, with the deceased and injured witness and it is only after the Doctor asked him to make the complaint that he went to Palanpur Police Station to lodge it. Both eye witnesses, PWs2 and 4, have given different versions of the same incident at the first instance. If the complaint and the history given by PW4 are compared, the very genesis and cause of the incident differs materially. Page 184 of 189 HC-NIC Page 184 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT Even the perpetrators of the crime are different. The two star witnesses of the prosecution, who are real brothers of the deceased, do not appear to be witnesses of truth and there is every possibility that they are out to falsely implicate the accused persons due to past enmity. PW3, the Medical Officer who treated the injured witness, has no axe to grind either with the complainant party or the accused. He has stated that PW2 gave the history of assault by Ganpat Kastur Mali to him which he has duly recorded in the injury certificate Ex.23. The said certificate has been proved by its author. Mere denial by PW4 regarding giving of the history cannot set the injury certificate at naught, as PW3, the author of the document, who has stood steadfast in his crossexamination in this regard. The injured witness has not mentioned assault by any other person, except by Ganpat Kastur Mali, therefore, the entire case of the prosecution is not beyond the realm of doubt.
130. The mysterious Ganpat Kastur Mali has not been Page 185 of 189 HC-NIC Page 185 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT examined by either the prosecution or the defence. The Investigating Officer has corroborated the testimony of PW3 Medical officer, to the effect that the history was given by PW4 to the Medical Officer regarding the assault by Ganpat Kastur Mali. However, he has admitted that he has not made any further investigation in this regard. The other independent witnesses such as the persons who ran to the aid of PW2 and PW4 when they shouted for help after the assault by accused No.1 who have been specifically named, have not been examined. Nor have the shopkeeper of the Paan shop where PW2 went to purchase "Beedi" or the other shopkeepers nearby, been examined. They would have been natural and independent witnesses. It has come in evidence that the place where the incident took place is a busy thoroughfare where there is a continuous coming and going of people. There are shops around and some near the spot of occurrence. The incident took place at 7:00 pm near the Bus Stand. It is obvious that several people must have been Page 186 of 189 HC-NIC Page 186 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT around. Despite this, only interested and related witnesses have been examined and no independent evidence has come on record.
131. The learned Public Prosecutor has laid great emphasis on the weakness of the case of the defence. It is a settled principle of law that the prosecution is required to stand on the strength of its own case and not depend on the weakness of the case of the defence. The defence is required to show only the preponderance of probability whereas the prosecution is bound, in law, to prove its case beyond any reasonable doubt. In our view, the prosecution has failed in discharging this duty.
132. When the evidence of both the eyewitnesses is found to be contradictory and untrustworthy, the recovery of the knife is not proved, how the blood on the clothes of the accused was found is not explained, it follows that the participation of the rest of the accused, namely accused Nos.2 to 7, or their joining in Page 187 of 189 HC-NIC Page 187 of 189 Created On Thu Aug 31 23:06:44 IST 2017 R/CR.A/319/2012 CAV JUDGMENT the unlawful assembly, cannot be believed. In addition thereto, the recovery of sticks has only been purportedly made from accused Nos.3 and 4, which aspect has not been established by the version of the investigating officer. The requirements of Section 27 of the Evidence Act have not been fulfilled in this regard, therefore, the socalled recovery is defective in the eyes of law. The cardinal principle of criminal law that the prosecution is required to prove its case beyond reasonable doubt is not fulfilled. The evidence on record is not of the nature or standard required that would bring the case of the prosecution beyond the pale of reasonable doubt.
133. For the reasons discussed in detail hereinabove, we find it extremely hazardous to maintain the conviction of all the accused persons. The judgment of the Trial Court convicting the accused persons under Section 302 read with Section 149 of the IPC, therefore, deserves to be quashed and set aside.
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134. Consequently, the common judgment and order of conviction and sentence dated 29.02.2012, passed by the learned 5th (Adhoc) Additional Sessions Judge, Deesa, in Sessions Case No.119 of 2008, against all the appellants is hereby quashed and set aside. All the appellants are acquitted of the charges against them by extending them the benefit of doubt.
135. The appellants shall be released from custody forthwith, if not required in any other case.
136. All the three appeals stand allowed.
137. The Record and Proceedings be sent back to the Trial Court forthwith.
(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) sunil Page 189 of 189 HC-NIC Page 189 of 189 Created On Thu Aug 31 23:06:44 IST 2017