Gujarat High Court
Chhelabhai Panchai Bharwad Soriya & 3 vs State Of ... on 10 October, 2016
Author: G.B.Shah
Bench: G.B.Shah
R/CR.A/979/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 979 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment?
2 To be referred to the Reporter or not? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the constitution of India,
1950 or any order made thereunder?
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CHHELABHAI PANCHAI BHARWAD SORIYA & 3....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR CHIRAG B PATEL, ADVOCATE for the Appellant(s) No. 1 4
MR KL PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 10/10/2016
ORAL JUDGMENT
1. Present appeal assails the judgment and order dated Page 1 of 30 HC-NIC Page 1 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT 02/07/2016, passed by the learned 3rd Additional Sessions Judge, Dhrangadhra in Sessions Case No. 4 of 2008, whereby, while acquitting the original accused Nos. 3, 6, 8 and 9 for the offences punishable under Sections 307, 324, 325, 326, 323, 504, 506(2), 447, 143, 147, 148 and 149 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and Sections 183 and 184 of the Gujarat Panchayats Act (for brevity, 'the Panchayats Act'), and present appellants - original accused Nos. 1, 4, 5 and 7 from the offences punishable under Sections 323, 504, 506(2), 143, 147, 148 and 149 of the IPC and Sections 183 and 184 of the Panchayats Act, the present appellant No. 1 - original accused No. 1 came to be convicted for the offences punishable under Sections 326, 325, 324 and 447 of the IPC, whereas, present appellant Nos. 2, 3 and 4 - original accused Nos. 4, 5 and 7 came to be convicted for the offences punishable under Sections 325, 324 and 447 of the IPC and sentenced as under:
Original Offence Sentence
accused No.
1 326 IPC RI for 7 years with fine of
Rs.5,000/ i/d. SI for 6 months.
1, 4, 5, 7 325 of IPC RI for 3 years with fine of
Rs.3,000/ each i/d. SI for 3
months.
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HC-NIC Page 2 of 30 Created On Tue Oct 11 00:18:56 IST 2016
R/CR.A/979/2016 JUDGMENT
Original Offence Sentence
accused No.
1, 4, 5, 7 324 of IPC RI for 1 year with fine of
Rs.1,000/ each i/d. SI for 1
month.
1, 4, 5, 7 447 of IPC RI for 1 month with fine of
Rs.250/ each i/d. SI for 7 days.
2. It is pertinent to note that pending trial, original accused No. 2 -
Sagrambhai Bhojabhai Soriya Bharwad had passed away and hence, the case was ordered to be abated qua him.
3. Filtering the unnecessary details, the case of the prosecution is that, on 13/01/2007 at about 5:00 p.m. when the complainant and others were at their respective fields and indulged in their works, at that time, the accused persons trespassed into the filed of the complainant for grazing their sheeps and goats and since the cattle started grazing the pasture (kadab) belonged to the complainant, father of the complainant Ramjibhai denied the accused for doing so to which, the accused got excited and started abusing him. Hence, Heeraben, the mother of the complainant went there to whom, the appellant No. 1 - original accused No. 1 pushed down. At that time, the paternal uncles of the complainant, who were working in the nearby field, rushed Page 3 of 30 HC-NIC Page 3 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT to the spot. Accused No. 1 - Chhela Pancha assaulted Popat Talshi, whereas, Sagram Bhoja, the accused No. 2, assaulted Tribhovan Talshi, the uncles of the complainant, with the scythes possessed by them; accused No. 3 - Nanji Bhoja assaulted the mother of the complainant with a stick; the accused Nos. 4, 5 and 6, respectively Bhupat Kana, Ajit Kana and Anada Naja assaulted the father of the complainant with the sticks; the accused No. 1 also tried to assault upon the complainant with the scythe possessed by him but the complainant resisted the same by holding the butt of the same; the accused Nos. 7 and 8, respectively Meru Suda and Chhagan Bhagvan also assaulted Bhagvan Talshi, another uncle of the complainant and the father of the complainant with the sticks possessed by them; the accused Nos. 1 and 2 were asking them to done all to the death. Since, there was a huge hue and cry, the people of nearby field rushed to the spot and hence, all the accused fled away causing injuries to the complainant side. The accused, thus, committed the offence alleged against them, for which a complaint came to be lodged.
3.1 Pursuant to the complaint, investigation was carried out. After investigation, chargesheet was filed. The trial Court framed the Page 4 of 30 HC-NIC Page 4 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 3.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:
ORAL EVIDENCE S/n. Name of Witness Exh.
1 Hirabhai Dalubhai, Panch 23 2 Merubhai Chhaganbhai, Panch 25 3 Ankubhai Rambhai, Panch 28 4 Rameshbhai Devjibhai, Panch 30 5 Mansukhbhai Ramjibhai Chavda, complainant 36 6 Popatbhai Talshibhai Chavda 43 7 Ramjibhai Talshibhai 79 8 Heeraben Ramjibhai Chavda 81 9 Chandubhai Maganbhai 84 10 Magan Talshibhai Chavda 86 11 Tribhovan Talshibhai Dalwadi 90 12 Dr. Datatrey Radhakrushna Khadayate 95 13 Dr. Yogendrasinh Devisinh Solanki 108 14 Ajitsinh Khodubha Parmar, PSO 115 15 Dr. Vipul Popatlal Khandhar 118 16 Harish Harshadray Gandhi 140 17 Haresh Bavanjibhai Vora, IO 150 DOCUMENTARY EVIDENCE Page 5 of 30 HC-NIC Page 5 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT S/n. Document Exh. 1 Panchnama of place of offence 24 2 Panchnama of seizure of clothes of the injured 26 3 Arrest Panchnama 29 4 Complaint 37 5 Case papers of the complainant 96 6 Injury Certificate of the complainant 97 7 Case papers of Bhagvan Talshibhai 98 8 Injury Certificate of Bhagvan Talshibhai 99 9 Case papers of Heeraben Ramjibhai 100 10 Injury Certificate of Heeraben Ramjibhai 101 11 Case papers of Popatbhai Talshibhai 102 12 Injury Certificate of Popatbhai Talshibhai 103 13 Case papers of Tribhovan Talshibhai 104 14 Injury Certificate of Tribhovan Talshibhai 105 15 Case papers of Ramjibhai Talshibhai 106 16 Injury Certificate of Ramjibhai Talshibhai 107 17 Injury Certificate of Ramjibhai Talshibhai 109 18 Injury Certificate of Popat Talshibhai 110 19 Injury Certificate of Tribhovan Talshibhai 111 20 FIR 116 21 Case papers of Ramjibhai Talshibhai 119 22 Injury Certificate of Ramjibhai Talshibhai 120 23 Xray 121 24 Injury Certificate of Ramjibhai Talshibhai 122 25 Case papers of Mansukhbhai 123 26 Xray 124 27 Medicolegal Certificate of Mansukhbhai 125 Ramjibhai 28 Medicolegal Certificate of Mansukhbhai 126 Ramjibhai 29 Xray 127 Page 6 of 30 HC-NIC Page 6 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT 30 Case papers of Bhavanbhai Talshibhai 128 31 Medicolegal Certificate of Bhagvanbhai 129 Talshibhai 32 Medicolegal Certificate of Bhagvanbhai 130 Talshibhai 33 Case papers of Heeraben Ramjibhai 131 34 Medicolegal Certificate of Heeraben Ramjibhai 132 35 Medicolegal Certificate of Heeraben Ramjibhai 133 36 Case papers of Popatbhai Talshibhai 134 37 Xray 135 38 Injury Certificate of Popatbhai Talshibhai 136 39 Injury Certificate of Popatbhai Talshibhai 137 40 Injury Certificate of Tribhovan Talshibhai 138 41 Injury Certificate of Tribhovan Talshibhai 139 42 Yadi as to preparing the map of scene of offence 141 43 Letter as to forwarding the map of scene of 142 offence 44 Letter as to forwarding the complaint to the PSO 151 for registration 45 Letter to MO for issuing the certificates as regards 152 blood sample and medicolegal certificates 46 Letter to FSL as regards sending of muddamal 153 47 Letter of FSL as to receipt of muddamal 154 48 Letter as to sending the Analysis Report 155 49 Letter as to sending the Analysis Report 156 50 Letter of FSL as collecting the muddamal 157 51 Letter as to addition of section 158 52 Closing pursis 159
3.3 At the end of the trial, Further Statements of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, Page 7 of 30 HC-NIC Page 7 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT 'the Code') were recorded in which the accused denied the evidence forthcoming on the record and stated that a false case has been filed against them. Thus, after recording abovereferred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge came to the aforesaid conclusion by the impugned judgment and order, giving rise to prefer the present appeal by the appellants -
original accused Nos. 1, 4, 5 and 7.
4. Heard learned advocate Mr. B. S. Patel for learned advocate Mr. Chirag B. Patel, the learned advocate for the appellants - original accused Nos. 1, 4, 5 and 7 and Mr. K. L. Pandya, the learned Additional Public Prosecutor, for the respondent - State. 4.1 The learned advocate for the appellants accused contended that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence for which the appellants accused are convicted and sentenced and thereby, the learned trial Judge has erred in coming to such a conclusion. He took Page 8 of 30 HC-NIC Page 8 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT this Court through the oral as well as the entire documentary evidence on record and submitted that the impugned judgment and order, passed by the learned trial Judge is based on the conjectures and surmises, which have no place in criminal jurisprudence. He submitted that there are material contradictions as to which weapon had been used by which of the accused persons and as to which injury had been caused by them and to which of the injured persons.
4.2 The learned advocate for the appellants - accused further submitted that the learned trial Judge has erred in not considering the fact that the cause for entire incident was grazing the sheeps and goats, however, the genesis of the incident in question has not been proved by the prosecution. 4.3 The learned advocate for the appellants - accused further submitted that the learned trial Judge has failed to take into consideration the material aspect that before the doctor, by whom the injured had been treated, no name of the accused persons had been revealed. Moreover, he submitted that the evidence of the complainant viz. Mansukhbhai Ramjibhai Chavda at exh. 36 and the evidence of the eyewitnesses are in Page 9 of 30 HC-NIC Page 9 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT contravention with the medical evidence and hence, sans trustworthiness and the said fact, the learned trial Judge has failed consider at all.
4.4 He further submitted that though available, the prosecution has chosen to examine only the family members and relatives of the injured persons as the witnesses and accordingly, they being the interested witnesses, their evidence should be dealt with immense care and caution and when there are apparent contradictions and omissions in the evidence of the prosecution witnesses and in view of nonexamining any independent witnesses, conviction imposed by the learned trial Judge should not be upheld.
4.5 The learned advocate for the appellants - accused further submitted that PW6 Popatbhai Talshibhai Chavda, who is examined at exh. 43, had, though it was his case that accused No. 1 Chhela Pancha had caused him injury by a scythe, he could not identify him in the Court and had wrongly identified the another accused as accused No. 1 Chhela Pancha and accused No. 1 - Chhela Pancha as Sagram Bhoja. Moreover, he submitted that there appears nothing on record to show that Test Page 10 of 30 HC-NIC Page 10 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT Identification Parade was held and the learned trial Judge has also failed to consider the said important aspect. 4.6 Making above submissions, the learned advocate for the appellants accused requested to allow the present appeal as no ingredients of the said offence have been proved and the prosecution has failed to prove its case against the accused beyond reasonable doubt, setting aside the impugned judgment and order.
4.7 In support, the learned advocate for the appellants - accused has relied upon a decision of this Court in the case of Dahyabhai Revabhai Chamar and Others Vs. State of Gujarat, reported in 2009 (1) GLR 790, more particularly, para 35 of the same, which reads as under:
"[35] The evidence of discovery weapons is not at all useful to the prosecution. When we scrutinize this evidence, we find that six accused out of seven accused made disclosure before the police officers jointly, in presence of panchas. This panchnama was drawn on 18.12.1997 at 14.15 hours and panch Mahammadbhai Hanifbhai Dhaga examined as P.W.6 at Ex.31 also supports that all the accused jointly made Page 11 of 30 HC-NIC Page 11 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT disclosure before the police officers about the weapons and weapons were discovered in pursuance of this information by the accused jointly from open place. Learned advocate Mr.Y. V. Brahmbhatt for the appellants has relied upon the decision of the Apex Court in the matter of Mohd. Abdul Hafeez Vs. State of Andra Pradesh, reported in 1983 Cri.L.J. 689 = AIR 1983 S.C. 367, wherein the Apex Court observed that joint discovery on joint statements of the accused would not incriminate the accused. We have also noted that the way regarding joint statement of the accused which leads to discover, is most unsatisfactory because if the evidence otherwise confessional in character is admissible under Section 27 of the Evidence Act, it is obligatory upon Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. In this panchnama at Ex.32, it is recorded that all the six accused in the presence of panchas voluntarily stated that they were prepared to discover the weapons, they had used by which they had beaten the opposite party on 17.12.1997 and upon this information jointly received from the accused, Investigating Officer and the panchas took the accused to search the discovery. Therefore, this is most unsatisfactory mode of proving important piece of evidence permissible under Section 27 of the Evidence Act. In addition to this, it may be noted that all Page 12 of 30 HC-NIC Page 12 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT the discovery by each accused is from an open place. Therefore, the evidence of discovery is not at all satisfactory and, therefore, the evidence of Forensic Science Laboratory about the blood group of the deceased on two muddamal axes, is also of no use to the prosecution."
5. Per contra, Mr. Pandya, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. He took the Court through the relevant oral as well as documentary evidence on record and the discussion made by the learned trial Judge in the impugned judgment and order and submitted that the prosecution has successfully proved its case against the appellant - accused and the learned trial Judge has committed no error in convicting the present appellants after duly evaluating and appreciating the evidence on record and considering the gravity of the offence, he requested Page 13 of 30 HC-NIC Page 13 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT that this Court may not interfere in the appeal and eventually, requested to dismiss the present appeal confirming the impugned judgment and order.
6. I have considered the abovereferred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and reappreciated and reevaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. I have also gone through the decision relied upon by the learned advocate for the appellants - accused. 6.1 The case of the prosecution is that the appellants herein and other persons had, allegedly made attack on the complainant and others respectively with scythe (dhariya) and sticks on a quarrel took place for grazing of cattle and thereby, caused severe injuries to them. It is pertinent to note that in all 09 persons had been arraigned as accused out of whom, the original accused Nos. 3, 6, 8 and 9 came to be acquitted of the offences punishable under Sections 307, 324, 325, 326, 323, 504, 506(2), 447, 143, 147, 148 and 149 of the IPC and Section 183 and 184 of the Panchayats Act, whereas, the present appellants - original accused Nos. 1, 4, 5 and 7, while acquitted for the offences Page 14 of 30 HC-NIC Page 14 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT punishable under Sections 323, 504, 506(2), 143, 147, 148 and 149 of the IPC and Sections 183 and 184 of the Panchayats Act, were convicted respectively for the offences punishable under Sections 326, 325, 324 and 447 of the IPC. Thus, it is pertinent to note here that all the accused are acquitted of the offences punishable under Sections 143, 147, 148 and 149 of the IPC. Moreover, the case had already been abated qua original accused No. 2 - Sagram Bhoja, since he died pending trial. 6.2 It is not under dispute and as it appears referring to the deposition of PW12 Dr. Datatrey Radhakrushna Khadayate, exh. 95 that, after the incident alleged to have been occurred on 13/01/2007 after 5:30 p.m., at about 7:00 p.m. on the same day, complainant - Mansukhbhai Ramjibhai Chavda (exh. 36), Bhagvanbhai Talshibhai Dalwadi, Heeraben Ramjibhai Dalwadi (Chavda), (exh. 81), Popatbhai Narshibhai (sic. Talshibhai) Dalwadi (Chavda), (exh. 43), Tribhovanbhai Talshibhai Dalwadi (Chavda), (exh. 90) and Ramjibhai Talshibhai Dalwadi (Chavda), (exh. 79) had rushed to the Referral Hospital and CHC, Halvad without police yadi and while giving history, none of the injured had disclosed the name of any of the accused persons and had simply conveyed that in a scuffle they had Page 15 of 30 HC-NIC Page 15 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT received such injuries by a particular weapon viz. stick/scythe. So far as complainant - Mansukhbhai Ramjibhai and Bhagvanbhai Talshibhai Dalwadi are concerned, they have mentioned to have received the injuries by stick; Heeraben has not disclosed the type of weapon by which she had received the injury; Popatbhai has stated to have received the injuries by both, stick and scythe, whereas, Tribhovanbhai has stated to have received injury in the scuffle and Ramjibhai has also stated to have received the injuries in the scuffle. It further appears that, thereafter, on the same day i.e. 13/01/2007, all had rushed to Surendranagar and as deposed by PW15 Dr. Vipul Popatlal Khandhar at exh. 118, they had taken treatment at C. U. Shah Medical College and Hospital and had been examined by the Medical Officer Shri Vaghela. In light of the same, if the Police Vardhi, forwarded by the Police Sub Inspector, Halvad Police Station to the PSO, Halvad at exh. 151 is referred, it appears that full names of all the nine accused have been recorded in the same, however, no time is mentioned in it. Likewise, referring the complaint, exh. 37 given by complainant - Mansukhbhai Ramjibhai Chavda, it appears that he had given the complaint to the PSI, Halvad at the Government Hospital at Halvad in which also, the full names of the accused have been Page 16 of 30 HC-NIC Page 16 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT disclosed as recorded at the end of the said complaint. It is mentioned that all the accused had, in collusion with each other, caused the injuries by scythes and sticks, however, it appears that which accused was possessing which weapon, has not been disclosed by the complainant. It is pertinent to note that, at the initial point of time, as referred herein above, at the Government Hospital, no names of the accused had been disclosed, neither at Halvad nor at Surendranagar. From the above discussion, it can be easily said that after taking the treatment at Halvad, all the injured had taken treatment at Surendranagar and in between in the Police Vardhi at exh. 151, no time has been mentioned and the fact remains that no name of the accused had been given before the second doctor at Surendranagar also, in spite of the fact that in between complaint at exh. 37 had been given to PSI, Halvad, that too, at the Government hospital at Halvad in which full name of all the accused had been disclosed. 6.3 In light of aforesaid and in light of the conclusion arrived at by the learned trial Judge as reflected in para 35 of the impugned judgment and order, if the depositions of PW3 Ankubhai Rambhai at exh. 28 and PW4 Rameshbhai Devjibhai at exh. 30, who are the panchwitnesses of the Panchnama of Arrest of the Page 17 of 30 HC-NIC Page 17 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT accused at exh. 29, are referred, they have not supported the averments made in the said panchnama and accordingly, have not supported the case of the prosecution. Referring to the said panchnama, exh. 29, it appears that as mentioned in the initial paragraph of the same, the panchas were called as the accused were required to be arrested and weapons were also to be seized from the accused. In the next paragraph it is mentioned that in the chamber of PSI, 09 persons were sitting out of whom, one was made to stand and on asking his name, he stated his name to be Chhelabhai Panchabhai Bharwad, resident of Sapakada and thereafter, there is the narration of clothes he had put on. It is further mentioned in it that, 'he voluntarily produces one iron scythe'. It is further mentioned in the said panchnama that, 'Pasting the slips bearing the names of we, panchas, keeping the same in a clothe bag, stitching it by thread, putting the seal of PSI, Halvad, it was seized during investigation'. It further appears that all the accused persons had thus, produced the respective weapons used by them in the crime, which were seized as aforesaid. In the said set of facts, if the deposition of PW5 Mansukhbhai Ramjibhai Chavda, the complainant at exh. 36 is referred, he has narrated the incident as to how the accused had Page 18 of 30 HC-NIC Page 18 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT come in his field (vadi) on the day of incident and caused the injuries on each of the injured persons and the said fact is also narrated by the learned trial Judge in para 35 of the impugned judgment and order. The complainant has deposed in his deposition that, 'at that time my father Ramjibhai had denied them to graze their sheeps and goats and hence, all the nine accused started pushing and abusing my father and threatened him to death and also started beating him; at that time, my mother rushed there and asked the accused not to abuse and told them not to graze (their cattle) from their fodder'. Moreover, in his examinationinchief, in para 5, he has identified the muddamal article No. 7 - scythe (dhariyu), which was possessed by original accused No. 1 - Chhelabhai Panchabhai and the muddamal article No. 8 - scythe (dhariyu), which was possessed by original accused No. 2 - Sagram Bhoja Bharwad and has further deposed that muddamal article No. 9 stick was possessed by Anada Naja, the original accused No. 6 and thereafter, referring to the muddamal article Nos. 10 to 15, he has deposed that the same were used by the rest of the accused in the crime and accordingly, he had identified the sticks. It is pertinent to note that so far as sticks are concerned, except Page 19 of 30 HC-NIC Page 19 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT original accused No. 6 - Anada Naja, he has not given name of any of the accused and as to who were possessing which number of muddamal articles at the relevant point of time. Moreover, in his crossexamination, in para 12, he (complainant) has deposed that, 'I have stated in my deposition that the accused had assaulted with sticks giving indiscriminate blows, however, I could not say as to how much time had been elapsed in the same. I have stated that all the nine accused had been beating with stick one after another to my father and at that time, I was situated at a distance of about 200 to 250 feet from there. All these nine persons were beating my father with sticks heavily. It is true that the sticks, which are shown to me, are made of bamboo. As per my say, my father was beaten up with indiscriminate blows of sticks and the accused beat the other witnesses with sticks as they came'. Moreover, in para 14 of his deposition, in the crossexamination, certain omissions have come on record.
6.4 Thus, from the above deposition, so far as complainant -
Mansukhbhai Ramjibhai Chavda is concerned, specific accusation has been forthcoming on record so far as original accused Nos. 1 and 2 are concerned and for the rest of the accused, he has Page 20 of 30 HC-NIC Page 20 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT stated that one after another, they were assaulting with sticks. 6.5 Referring the deposition of PW6 Popatbhai Talshibhai Chavda at exh. 43, he has stated that Chhela Pancha, the original accused No. 1 had given him the scythe blow on his right leg due to which, he had fallen down and started bleeding and became unconscious. He has further deposed that Sagram Bhoja, the original accused No. 2 had given stick blows to Tribhovanbhai on his leg and bleeding had started. He has further deposed that since he was unconscious, he did not know as to who had given blows by which weapon. Moreover, drawing attention on para 5 of the deposition of this witness, much stress has been put up by the learned advocate for the appellants - accused. In the remarks column in para 5 of the deposition of this witness, it is mentioned that, 'on asking to identify the accused by getting down from the witness box, he goes to the accused and identifies Chhela Pancha as Sagram Bhoja. This witness again gets down from the witness box and identifies the accused who is sitting besides to be Chhela Pancha, however, in fact, he is Matra Pancha'. Thus, it has come on record that though the original accused No. 1 i.e. Chhela Pancha had given the scythe blow on the leg of this Page 21 of 30 HC-NIC Page 21 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT witness (PW6), as deposed by him, as referred above, he could not identify him before the Court. It is important to note at this juncture that the accused as well as all the injured are the residents of the same village Sapakada of taluka: Halvad. Referring the above evidence, the learned advocate for the accused has mainly submitted that though this witness named the accused in his deposition as to who had inflicted the injury to him and though, the said accused belonged to his own village, he could not identify him in the Court and that creates serious doubt about the veracity in the evidence of this prosecution witness. Moreover, referring the deposition of the complainant, he has deposed that neliya, which is a small way for water, was not the way for commutation of the accused, however, the PW6 has deposed in his crossexamination that neliya was there but they had no right to go through the said neliya.
6.6 Moreover, referring to the deposition of PW7 Ramjibhai Talshibhai at exh. 79, he has deposed that Chhela Pancha, the original accused No. 1, had given him the stick blow, however, as referred herein above, Chhela Pancha, the original accused No. 1 was possessing the scythe and for the said contradiction, no explanation appears to have been forthcoming on record.
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6.7 Further, as per the deposition of PW8 Heeraben Ramjibhai Chavda, who is the mother of the complainant and the wife of Ramjibhai Talshibhai (PW7), at exh. 81, accused No. 1 Chhela Pancha had pushed her down and hence, her brotherinlaw (jeth) had rushed there to whom also, the accused had beaten and at that time, her husband and the son were coming from the nearby place called pada. In light of this, if the deposition of complainant Mansukhbhai at exh. 36 is referred, it appears from his examinationinchief and as referred herein above, initially, his father Ramjibhai had denied the accused to graze their sheeps and goats in their field and accordingly, in the submission of the learned advocate for the accused and as is reflected from the evidence on record, there appears vital contradictions, which the learned trial Judge has failed to take into consideration. 6.8 Moreover, referring the deposition of PW9 Chandubhai Maganbhai at exh. 84, he appears to be the first witness who has admitted that the fields (vadi) of Tapu Karsan and Devji Nagar were situated near his field. He has disclosed that the accused Nos. 1 and 2 were armed with scythes and rests were possessing Page 23 of 30 HC-NIC Page 23 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT sticks but he has not disclosed as to who had caused the injury to whom.
6.9 So far as PW11 Tribhovan Talshibhai, whose deposition is at exh. 90, is concerned, he has attributed injury by accused No. 2, who has passed away pending trial.
6.10 Referring the deposition of PW17 Haresh Bavanjibhai Vora, the Investigating Officer at exh. 150, he has deposed in his examinationinchief that, 'In the case on hand, the accused, total 09 in number, had been arrested on 17/01/2007 along with the weapons used in the crime in presence of panchas as per the description of the panchnama carried out between 13:30 and 15:00', however, which muddamal articles were possessed by which of the accused, is not forthcoming on record. Besides, the panchas have not supported the contents of the panchnama and accordingly, the important aspect as to which weapon was possessed by which accused, is not proved beyond reasonable doubt and under the circumstances, the role played by each of the accused in the alleged crime cannot be determined beyond reasonable doubt. And when the aforesaid aspect is not proved, Page 24 of 30 HC-NIC Page 24 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT the learned trial Court should not have jumped to the conclusion by relying solely on the FSL report to the effect that so far as accused Nos. 4, 5 and 7 are concerned, the blood stains were found from the sticks, which they had produced as per the Panchnama of Arrest at exh. 29.
6.11 Thus, considering the aforesaid evidence in entirety, there found material contradictions as to the weapons used by a particular accused in the crime and the injuries caused by each of them to the injured persons. There is nothing on record to show precisely as to which accused had been possessing which weapon and as to which accused had inflicted which injury and upon whom. Moreover, as per the deposition of complainant, his father Ramjibhai (PW7) had initially denied the accused and stopped them from grazing their cattle in their field, whereas, as per the deposition of Heeraben (PW8), the mother of the complainant, she has deposed otherwise and as per her version, Ramjibhai had reached later on at the spot. Moreover, PW6 Popatbhai Talshibhai has, though stated to have sustained injury by a scythe blow, allegedly inflicted by accused No. 1 - Chhela Pancha, however, he could not identify him before the Court and instead, he identified Chhela Pancha as Sagram Bhoja and another Page 25 of 30 HC-NIC Page 25 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT accused Matra Pancha as Chhela Pancha. Moreover, there appears vital contradictions as to which weapon had been possessed by which accused, more particularly, by accused Nos. 1 and 2 for the reason that as per the evidence of the prosecution witnesses, as referred to above, they were possessing scythe whereas, others have stated sticks and accordingly, it is very difficult to adjudge the role played by each of the accused and the injuries caused by them. Moreover, it is also an undisputed fact that at the initial point of time, no names of the accused were disclosed, either before the doctor at Halvad or at Surendranagar in spite of the fact that as referred above in between the two hospitals, the complaint at exh. 37 had already been lodged by the complainant at Halvad hospital as discussed earlier at length.
6.12 At this stage, the observations made by the Division Bench of this Court in the decision in Dahyabhai Revabhai Chamar and Others (supra), relied by the learned advocate for the appellants, are worth to be referred and hence, at the cost of repetition, the same are quoted hereunder:
"[35] The evidence of discovery weapons is not at all useful to the prosecution. When we scrutinize this evidence, we find Page 26 of 30 HC-NIC Page 26 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT that six accused out of seven accused made disclosure before the police officers jointly, in presence of panchas. This panchnama was drawn on 18.12.1997 at 14.15 hours and panch Mahammadbhai Hanifbhai Dhaga examined as P.W.6 at Ex.31 also supports that all the accused jointly made disclosure before the police officers about the weapons and weapons were discovered in pursuance of this information by the accused jointly from open place. Learned advocate Mr.Y. V. Brahmbhatt for the appellants has relied upon the decision of the Apex Court in the matter of Mohd. Abdul Hafeez Vs. State of Andra Pradesh, reported in 1983 Cri.L.J. 689 = AIR 1983 S.C. 367, wherein the Apex Court observed that joint discovery on joint statements of the accused would not incriminate the accused. We have also noted that the way regarding joint statement of the accused which leads to discover, is most unsatisfactory because if the evidence otherwise confessional in character is admissible under Section 27 of the Evidence Act, it is obligatory upon Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. In this panchnama at Ex.32, it is recorded that all the six accused in the presence of panchas voluntarily stated that they were prepared to discover the weapons, they had used by which they had beaten the opposite party on 17.12.1997 and upon this information Page 27 of 30 HC-NIC Page 27 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT jointly received from the accused, Investigating Officer and the panchas took the accused to search the discovery. Therefore, this is most unsatisfactory mode of proving important piece of evidence permissible under Section 27 of the Evidence Act. In addition to this, it may be noted that all the discovery by each accused is from an open place. Therefore, the evidence of discovery is not at all satisfactory and, therefore, the evidence of Forensic Science Laboratory about the blood group of the deceased on two muddamal axes, is also of no use to the prosecution."
(emphasis supplied) 6.13 Moreover, undisputedly all the accused have been acquitted of the charge for the offences punishable under Sections 143, 147, 148 and 149 of the IPC; the case against the accused No. 2 had been abated pending trial since he had died and considering the depositions of aforesaid prosecution witnesses, a serious doubt has created in the case of the prosecution as there appears material contradictions and improvements in the deposition the crucial injured witnesses and in aforesaid view of the matter, when there are material contradictions and improvements in the evidence of the prosecution witnesses, in the considered opinion of this Court, the prosecution has failed to prove its case against the present appellant - accused beyond reasonable doubt and the Page 28 of 30 HC-NIC Page 28 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT conclusion arrived by the learned trial Judge appears to be without considering the aforesaid material aspects. It is a well settled legal position that when the facts and circumstances cast a doubt on veracity of the prosecution case, it would be unsafe to convict the accused relying on uncorroborated versions of the prosecution witnesses and considering all the aspects of the matter in entirety and the discussion made herein above, I am of the view that benefit of doubt is required to be given to the appellants - accused as the prosecution has failed to prove the same beyond reasonable doubt. Moreover, the learned Additional Public Prosecutor is not in a position to take otherwise view of the matter by showing any substantive and cogent evidence. Accordingly, the present appeal deserves to be allowed and the impugned judgment and order is required to be set aside.
7. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 02/07/2016, passed by the learned 3rd Additional Sessions Judge, Dhrangadhra in Sessions Case No. 4 of 2008, is hereby set aside and the appellants - original accused Nos. 1, 4, 5 and 7 are acquitted of the charge for which they are convicted and sentenced by giving benefit of doubt. The appellants - accused No. 1 is reported to Page 29 of 30 HC-NIC Page 29 of 30 Created On Tue Oct 11 00:18:56 IST 2016 R/CR.A/979/2016 JUDGMENT be in jail and accordingly, he is directed to be set free forthwith if not required in any other case. The appellants - original accused Nos. 4, 5 and 7 are on bail. Their bail bonds shall stand cancelled. Registry to return the R&P to the trial Court forthwith. A copy of this order be communicated forthwith to the concerned jail authority as well as to the trial Court concerned for its onward compliance.
[ G. B. Shah, J. ] hiren Page 30 of 30 HC-NIC Page 30 of 30 Created On Tue Oct 11 00:18:56 IST 2016