Gujarat High Court
Lalvo @ Sanjaybhai Balubhai Pava & Anr vs State Of Gujarat on 24 April, 2014
Author: Bhaskar Bhattacharya
Bench: Chief Justice, J.B.Pardiwala
R/CR.A/2512/2008 CAV JUDGMENT
CR.A25122008Rj2.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2512 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the constitution of India, 1950
or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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LALVO @ SANJAYBHAI BALUBHAI PAVA & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR HARSHADRAY A DAVE with MR HARDIK A DAVE, ADVOCATES for the
Appellants.
MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent.
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CORAM: HONOURABLE THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/04/2014
Page 1 of 36
R/CR.A/2512/2008 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. This appeal is at the instance of two convicts for the offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code and is directed against the order of conviction and the consequent sentence dated 27th August 2008 passed by the learned 4th Court of Additional Sessions Judge, Vadodara, in Sessions Case No. 170 of 2007 thereby holding the accused No.1 guilty of the offence punishable under section 302 and the accused No.2 guilty of the offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code and sentencing them to suffer life imprisonment and to pay a fine of Rs.1000/- each with a further stipulation that in default of payment of the fine, the accused persons would undergo simple imprisonment for a further period of seven days.
2. The translated version of the charges framed against the accused persons are quoted below:
"(1) That you, the accused persons, and the mother of accused no. 1, had a quarrel with complainant, Chimanbhai Maganbhai Bariya, and his wife regarding the woods of the wild babul tree some days prior to 13/04/2007, and, you, the accused persons, intimidated that, "We will not let you live."
and as you, the accused no. 1, came to know about the relation of Sangita, the sister of you the accused no. 1, with Hasmukh, Page 2 of 36 R/CR.A/2512/2008 CAV JUDGMENT the son of complainant Chimanbhai, you were making quarrel after indulging in frequent altercation, and by keeping displeasure thereof, when complainant Chimanbhai, his wife Galuben, and his son Hasmukhbhai, were sleeping by keeping cots on their otla (raised platform) on 13/04/2007, at about 23.45 hours, though you, both the accused persons, with an intention to commit murder of Hasmukhbhai or knew that if Hasmukh is given blows of sickle on the chest and mouth part, his death would occur, you, the accused no. 1 Lalvo @ Sanjaybhai Balubhai, caused deadly injury on the chest and neck part of Hasmukhbhai with sickle, and you, the accused no. 2, being with him, aided and abetted during the period of incident or had common intention of murder of Hasmukhbhai, and thereby, you, have committed an offence u/s 302 of the I.P.C. read with section 114/34, by committing murder of Hasmukhbhai.
2) Though a notification of prohibition to keep arms of the Additional District Magistrate, Vadodara, was in force at aforesaid place, time and date, you, the accused persons, being armed with prohibited weapons, violating the notification of prohibition to keep arms, you, accused persons, have committed an offence u/s 135 of B.P. Act.
As you have committed aforesaid offences within jurisdiction and cognizance of this Court, this Court passes an order to conduct trial."
3. The case made out by the prosecution may be summed up thus:-
3.1 One Chimanhai Maganbhai Bariya, the complainant, had Page 3 of 36 R/CR.A/2512/2008 CAV JUDGMENT cut a Babul tree in the compound of his house. The accused persons and the mother of the accused no. 1, Champaben, went to take wood which were cut by him. At that time, a quarrel took place with the complainant regarding the wood and the accused no.1 caught hold of the collar of the complainant and intimidated to kill him. The accused no.1 having come to know about the relationship of his sister, Sangita, with Hasmukh, the son of the complainant, kept the animosity in his mind which took place and on 13 th April 2007, at about 23.45 hours in the night when the complainant, his wife, Guluben, and the son, Hasmukhbhai, were sleeping on bed on the Otla (raised platform) outside of their house, both the accused persons came near the otla of the house of the complainant. The accused no.2 stood on the road near to the Otla and the accused no.1 went near the bed of the deceased, Hasmukhbhai, and inflicted indiscriminately fatal blows of sickle on the mouth, neck and chest of Hasmukh. As the dog barked, Guluben and her husband Chimanbhai woke up, and on seeing the accused persons, they ran after them to catch but the accused persons escaped into corn field situated at some distance. As Hasmukh had sustained grievous injuries, the complainant along with the Sapranch, etc., took him to Dabhoi for treatment but the doctor declared him dead. Thus, the accused committed murder of Hasmukh, an offence punishable under section 302 of the Indian Penal Code. The accused also violated the notification of the District Magistrate under Section 135 of the Mumbai Police Act.
Page 4 of 36 R/CR.A/2512/2008 CAV JUDGMENT 3.2 Chimanbhai Maganbhai, the father of the deceased Hasmukh, lodged a complaint with regard to the above incident before Dabhoi Police Station on 14th April 2007 and the offence was registered at CR. No. I 66/07 u/s- 302 of the Indian Penal Code and its investigation was conducted by P.I. S.J.Patel of Dabhoi Police Station.
During the course of investigation, an inquest panchanma of the dead-body of the Hasmukh was drawn, and thereafter, the dead-body was sent for post-mortem. The statements of the concerned witnesses were recorded, various pieces of evidences were collected and the panchnamas were drawn. The accused persons were arrested. The muddamals were sent to the Forensic Science Laboratory. Thereafter; as sufficient amount of evidence were found against the accused persons, a charge-sheet was filed before the learned Judicial Magistrate First Class, Dabhoi. As the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate committed the case to the Sessions Court, Vadodara. 3.3 The accused pleaded 'not guilty' and claimed to be tried. 3.4 In the trial, the prosecution examined the following witnesses:-
Sr. Name of the witnesses PW Exh No. No. No. Page 5 of 36 R/CR.A/2512/2008 CAV JUDGMENT 1 Chimanbhai Maganbhai Bariya (The PW.1 Exh.11 complainant and father of the victim) 2 Galuben Chimanbhai Bariya (Wife of the PW.2 Exh 17 complainant and mother of the victim) 3 Kalidasbhai Bavsingbhai Thakor [Sarpanch of PW.3 Exh 18 the village, panch witness for inquest panchnama, who turned hostile] 4 Dr.Subhash Jayantilal Shah [the Doctor who PW.4 Exh 20 conducted the post-mortem] 5 Rajnikumar Arvindbhai Gandhi [the driver of PW.5 Exh 25 the jeep in which the victim was transported to hospital, who turned hostile] 6 Dilipbhai Kalidas Pa.va. [panch witness to the PW.6 Exh 26 scene of offence, who turned hostile]] 7 Jayantibhai Chandubhai Darji [panch witness to PW.7 Exh 28 the seizure of muddamal article, who turned hostile] 8 Khusalbhai Karsanbhai Tadvi [panch witness for PW.8 Exh 32 seizure of clothes worn by the accused persons, who turned hostile] 9 Rameshbhai Girdhari Indori [panch witness for PW.9 Exh 34 seizure of clothes worn by the accused persons, who turned hostile]] 10 Chhaturbhai Himatbhai Pa.Va. [panch witness PW.10 Exh 35 for search of the scheme of offence for recovery of weapons, who turned hostile] 11 Udesinh Mohanbhai Pa.va.[panch witness for PW.11 Exh 38 search of the scheme of offence for recovery of weapons, who turned hostile 12 Bhikabhai Barbhai Rabari [a witness who PW.12 Exh 40 accompanied the victim to the hospital, who turned hostile] Page 6 of 36 R/CR.A/2512/2008 CAV JUDGMENT 13 Nayanbhai Jayantilal Joshi [Receptionist of PW.13 Exh 42 Pramukh Swami Hospital who gave a telephone vardhi to the police station about the dead- body being brought in the hospital] 14 Manharbhai Bhagabhai Bariya [police PW.14 Exh 44 constable who took the dead-body for post- mortem] 15 Ayub Ibrahimbhai Khalifa [panch witness for PW.15 Exh 45 recovery of clothes worn by the deceased] 16 Sureshbhai Joitaram Patel (The Investigating PW.16 Exh 46 Officer) 3.5 The prosecution also produced the following pieces of documentary evidence: Sl. Particulars of the document Exh. No. No. 1 Complaint of complainant Chimanbhai Exh.13 2 Photocopy of Ration card Exh.13 3 Sample of account of panchayat Exh.14 4 Photocopy of Light bill Exh.15 5 Inquest panchnama/ and its copy Exh.19/ 23 6 Yadi written to Medical Officer to conduct P.M. of Exh.21 dead body 7 Post-mortem requisition Form Exh.22 8 P.M. note Exh.24 9 Panchanama of the place of incident Exh.27 10 Panchanama of body condition of the accused Exh.29 persons 11 Panchanama of clothes of the deceased Exh.30 12 Discovery panchanama Exh.31 13 Panchanama of seizure of weapons Exh.33 Page 7 of 36 R/CR.A/2512/2008 CAV JUDGMENT 14 Panchanama of investigation of clothes of accused Exh.36/ persons Exh.37 15 Telephone Vardhi Exh.43 16 Certificate of Blood group Exh.47 17 Report of Parakh Laboratory Exh.48 18 A letter written to F.S.L. Exh.49 19 Report of Scientific Officer Exh.50 20 Letter and report of F.S.L. Exh.51/ 52/53 21 Serological report Exh.54 22 Notification Exh.55 3.6 After conclusion of the evidence of the prosecution, the
statements of the accused persons were recorded under section 313 of the Code of Criminal Procedure wherein they have denied the allegations levelled against them and stated that a false case had been filed against them.
3.7 As pointed out earlier, at the conclusion of the trial, the learned Sessions Judge found the appellants guilty of offence punishable under section 302 read with section 34 of the Indian Penal Code and inflicted punishment as indicated earlier. 3.8 Being dissatisfied, the convicts have come up with the present appeal.
4. Mr. Dave, the learned advocate appearing on behalf of the appellants, has taken us through the entire deposition of the Page 8 of 36 R/CR.A/2512/2008 CAV JUDGMENT prosecution witnesses and has pointed out that in this case, the learned Sessions Judge himself has disbelieved the evidence given by the panch witnesses and came to the conclusion that the recovery of the muddamal article was not proved. Mr. Dave further points out that even no blood was found from the wearing apparel of the appellants but in spite of such fact, the learned Sessions Judge solely relied upon the evidence given by the father and the mother of the victim and convicted the appellants. According to Mr. Dave, even the evidence given by these two witnesses cannot be believed in view of glaring inconsistencies, and, at the same time, they were interested witnesses. Mr. Dave contends that in this case, the accused persons being neighbours, due to animosity towards them, they have been indicted in the offence. Mr. Dave contends that no reasonable individual having regard to section 3 of the Evidence Act would consider the evidence given by the prosecution to be sufficient for convicting the accused persons. He, therefore, prays for setting aside the order of conviction and the consequent sentence.
5. On the other hand, Mr. Raval, the learned Additional Public Prosecutor appearing for the prosecution, has contended that the learned Sessions Judge, on the basis of oral evidence adduced by the eyewitnesses having believed the version of the prosecution case, we should not interfere with such finding of facts based on appreciation of evidence. Mr. Raval further submits that the trial court had the occasion to see the demeanour of the eyewitnesses, Page 9 of 36 R/CR.A/2512/2008 CAV JUDGMENT sitting in appeal, we should not interfere with such finding of fact. Mr. Raval, therefore, prays for dismissal of the appeals.
6. In the case before us all the panch witnesses except PW No.15 have become hostile and the learned Sessions Judge himself also did not accept the evidence given by those persons who turned hostile. We, however, propose to consider the evidence given by the parents of the victim in detail before considering the respective contentions of the learned counsel for the parties in this appeal.
7. PW. No.1, Chimanbhai Maganbhai Bariya, is the father of the victim who lodged the complaint. In his examination-in-chief, he has stated that he is a resident of village Shirola, Dabhoi Taluka, and did labour work. He had a son and a daughter. Of them, Hasmukh had expired in the incident and the daughter, Tara, was married at Megha Kui village of Vadodara Taluka and the name of her husband is Fatesinh.
7.1 The incident in question, according to this witness, occurred about one year before the date of deposition and he did not remember the exact date thereof.
7.2 This witness has stated that he knew the accused persons and the accused Sanjay was a resident of his village. The house of the said accused was situated in front of his house. This witness has Page 10 of 36 R/CR.A/2512/2008 CAV JUDGMENT stated that the other accused was the nephew of Sanjay and he knew him as Chhotu and he was a resident of Alamgadh village. 7.3 This witness has further stated that he was the only person belonging to Bariya caste in the 'Nishalvala' street, and all the residents except he and the members of his family, are of P.V. Caste and both the accused persons are also of P.V. caste. 7.4 This witness has stated that he had cut a Babul tree situated behind his house about two months before the incident of his son Hasmukh took place. At that time, the accused, Sanjay, and his mother, quarreled with him regarding said tree, and Sanjay caught hold of his neck, and his mother, viz. Champa had pulled the hairs of his head. Sanjay sat on him by catching hold of neck and rolled him down.
7.5 This witness further stated that the said Babul tree was in their boundary, and it was obstructing the house, which he was constructing. Therefore, he had cut the obstructing part of the Babul tree and woods had fallen down at the same place. Thereafter, when the accused, Sanjay, and his mother came to take the said woods lying there, as he refused, the aforesaid quarrel had taken place. According to this witness, at that time, they came to take woods with the object of making quarrel with him.
Page 11 of 36 R/CR.A/2512/2008 CAV JUDGMENT 7.6 This witness has further stated that thereafter, the accused persons did not do anything for the next two months. The construction work of his house was going on at the time of occurrence of this quarrel, and as there was a marriage ceremony at the place of accused persons, he did not give any complaint to the police in connection with aforesaid incident nor did he take any other step. During said period, there was marriage of the accused, Sanjay's sister whom he knew as "Nani".
7.7 This witness has further stated that after the occurrence of aforesaid quarrel, after about two months and about one year from the date of deposition, the incident of his son, Hasmukh, had taken place, at 12 o'clock in the night. At that time, he, his wife and Hasmukh were sleeping on the otla (raised platform) by keeping cots outside the house, and an electric bulb was glowing on the otla (raised platform). At the time of this incident, his son Hasmukh and his mother were sleeping by keeping their cots side by side and his cot was 12-15 feet far from their cot in the chowk. At the time of this incident, his wife Galuben suddenly shouted saying that, "Hasmukh had been chopped off." Therefore, he had woken up immediately, and then he saw that Hasmukh was lying in the cot, and Galuben was sitting by holding his neck to stop bleeding. According to this witness, he had seen the accused Sanjay and his nephew Chhotu. Sanjay was at the head side portion of Hasmukh, and Chhotu was standing at leg side portion of Hasmukh. As he woke up, they ran away immediately Page 12 of 36 R/CR.A/2512/2008 CAV JUDGMENT from there. Thereafter, he went to the house of Sarpanch. Sarpanch came to their house and saw his son. Thereafter, Hasmukh was taken to hospital at Dabhoi. When he looked at Hasmukh, he noticed that Hasmukh had sustained injury at the part of the mouth, throat and abdomen and he was bleeding. The fingers of one hand of Hasmukh were also chopped off. His son Hasmukh used to drive a jeep of Mr. Gandhi of their village. Hasmukh was taken to the hospital by putting him in the said jeep. When he brought the Sarpanch, Hasmukh's mother was alone with him. When he went to inform the Sarpanch, he told him that, "My son has been chopped off. Come." Sarpanch said, "Who has chopped him off?" The names of accused Sanjay and his nephew Chhotu were given to him, and he had seen them. After bringing Hasmukh at Dabhoi, at first, he was taken to Pramukh Swami Hospital. The doctor there examined Hasmukh, but he stated to take him to the Government Hospital. Therefore, he took him to Dabhoi Government Hospital. When Hasmukh was admitted in the Pramukh hospital, the case paper was issued. After Hasmukh was examined in the Government Hospital, he was declared to have died. According to this witness, when he looked at Hasmukh at house itself, he felt that he had expired. When he took Hasmukh to Dabhoi government hospital, the Sarpanch Kabhai, Bavsang P.V. had also come with them. As the doctor stated that Hasmukh had expired, he and the Sarpanch, etc. went to Dabhoi Police Station and lodged a complaint. At that time, police took his complaint regarding the incident of Hasmukh, and the police came to government hospital, and started further Page 13 of 36 R/CR.A/2512/2008 CAV JUDGMENT procedure. Police wrote down his complaint as dictated by him, and thereafter, he had also put his thumb impression thereon. He has proved the complaint and identified his thumb impressions thereon and has stated that the facts stated in the complaint are true. 7.8 According to this witness, after complying with the various formalities, the police persons had come to their village, Shirola, and they had also come to his house, and after coming to his house, they had taken the sample of blood from the place where it was found, the strips of cot also after cutting them (a strip of cloth) and the blood stained clothes of Hasmukh. At that time, his wife showed the said place. The police had taken the accused persons after arresting them. 7.9 This witness was shown muddamal clothes and he had identified the same. On looking at the same, he stated that they are the clothes of his son Hasmukh. The cot, on which Hasmukh was sleeping, was tied with strips. The breath of said plastic strip was 2.5
- 3 inch. Police had taken pieces of blood stained strips. He was shown the sample of strip of cot taken by the police and he had identified the same. According to this witness, the accused persons had caused injuries to his son Hasmukh with a sharp edged weapon of cutting sugarcane, which he called 'Katu". At the time of incident, he had seen accused persons near the cot of Hasmukh, but could not see weapon with them, but on the basis of injury sustained by Hasmukh, he thought that he has been given blows by the Katu which Page 14 of 36 R/CR.A/2512/2008 CAV JUDGMENT is used for cutting sugarcane.
7.10 This witness has further stated that during the investigation, Police asked for receipt of house tax and ration card, and he had given those to the police. He has identified the Ration card and the copy of the electricity bill.
7.11 In the cross-examination of this witness by the learned advocate for the accused persons, this witness has stated that he had met police persons at about 12 o'clock in the night at Dabhoi Police Station for the first time after the incident. He has admitted that the Sarpanch of their village was acquainted with court, office and police station, and he took Hasmukh to the hospital after the incident, and when they went to the police station, they were 7-8 persons of village including the Sarpanch. He has denied that the Sarpanch of their village explained as to how case should be written after going to police station, and thereafter, the police took his complaint; according to this witness, the police had taken his complaint earlier. He was in Dabhoi police station till 5 o'clock in the morning. After police relieved him at 5 o'clock in the morning, he went to his house and he had come to Dabhoi at 7 o'clock in the morning. When he went to his house, he had come by jeep. He had gone to his house, and he came back to Dabhoi with Patel Ramesh of their village who was driving motor cycle of his son-in-law at 7 o'clock in the morning. After coming to Dabhoi for the second time, he went to government hospital, and Page 15 of 36 R/CR.A/2512/2008 CAV JUDGMENT thereafter, the procedure of P.M. was conducted, the dead-body of Hasmukh was received by twelve o'clock in the afternoon, and he went to his house by taking dead-body. Thereafter, the same was taken to crematorium for doing funeral ceremony at three o'clock in the afternoon. Thereafter, he stayed at his house in the night of said day.
7.12 This witness has stated that the Police had not made any further inquiry from him on the day when the dead-body of Hasmukh was given, and he himself had not gone to the police for dictating further details or for correcting any mistake, which has been committed. He has admitted that when Hasmukh was taken to Pramukh Swami hospital, he had stated all the details known to him, including name of assailant and about the incident to the doctors there. At that time, the Sarpanch was also present there. 7.13 The cross-examination was adjourned and in the further cross-examination, this witness had admitted that the names of persons, who had assaulted Hasmukh, were not written in the Pramukh Swami hospital at Dabhoi, but he want to state that he was not asked there, and he was told to go to government hospital immediately. He has denied that the name of his son was asked in the Pramukh Swami hospital at Dabhoi, and he had stated name of his son completely. At that time, the doctor of Pramukh Swami hospital, had examined the injuries sustained by his son, and he had Page 16 of 36 R/CR.A/2512/2008 CAV JUDGMENT also dictated regarding said injury. He has denied that on asking as to who has brought Hasmukh in the Pramukh Swami hospital, he had stated that he brought, and he was his father and his name is Chimanbhai Maganbhai Bariya. This witness has admitted that Hasmukh was taken to Pramukh Swami Hospital at 12-12.30 hours in the night. According to this witness, he, the Sarpanch of his village, Kabhai of street, total four persons, had gone to Pramukh Swami hospital by taking Hasmukh. At that time, Hasmukh had expired. 7.14 This witness had denied the suggestion that the names of assailants were not known till Hasmukh was taken to Pramukh Swami Hospital. He has also denied that as he did not know names of assailants, the names of assailants were not stated in the Pramukh Swami hospital. He has further denied that all the details were asked in the said Pramukh hospital, but no details were stated, and he was falsely stating the same. This witness has stated that it was on 14/04 when he gave a complaint. This witness has further stated that he had not seen any knife at the time of incident and he has not mentioned knife in the complaint. This witness denied that after he gave a complaint in the Dabhoi police station, he dictated in the further statement that a blow of sickle has been given to Hasmukh. He admitted that he did not have personal information as to the weapon by which Hasmukh had been assaulted.
7.15 This witness has admitted that the marriage of Hasmukh Page 17 of 36 R/CR.A/2512/2008 CAV JUDGMENT had been fixed with a girl of Maldhar, Taluka - Vaghodia. The name of said girl was Geeta. He has denied that the engagement of Hasmukh with said Geeta had broken. He has also denied that marriage of Hasmukh had been thereafter solemnized with other girl of aforesaid village. He has admitted that marriage of Hasmukh was fixed on 22nd date, but it is not true that marriage of Hasmukh was fixed with other girl than Geeta. He has denied that as he had broken engagement and fixed marriage with other girl, the father of Geeta and relatives got angry and stated that they would see how could he come to their village for marriage.
7.16 This witness has denied that Hasmukh had a quarrel regarding mobile with a person, whose jeep he was driving. 7.17 This witness has admitted that when he took Hasmukh to government hospital at Dabhoi, the name and address of Hasmukh was stated there, and it was stated that he was his father. He has denied that he was asked about incident in the government hospital. When Hasmukh was taken to government hospital, he had not gone to the hospital but he was in the police station. He has denied that the Ssrpanch dictated complete details of the case, but he himself has dictated.
7.18 This witness has denied that the house of the accused, Sanjay, was situated in other street. This witness has denied that the Page 18 of 36 R/CR.A/2512/2008 CAV JUDGMENT facts regarding cutting of Babul tree that has been written, have been fabricated, and no incident had taken place regarding Babul tree. 7.19 This witness has denied that as his wife shouted that Hasmukh has been chopped off, he woke up. He has not dictated any such fact and he was stating in the court for the first time. He has denied that he had not dictated before the police that when he woke up, his wife was sitting by pressing throat of Hasmukh and he saw the same. He has admitted that he did not state before the police that Hasmukh had been chopped off with Katu (a weapon). 7.20 This witness had denied that he has falsely stated that at the time of the incident, both the accused persons were standing near the cot of Hasmukh, and this witness asserted that the same was quite true. This witness had denied that any other person had assaulted Hasmukh, and the names of the accused persons have been falsely given.
7.21 This witness has admitted that the election of gram panchayat of their village was held a week before the incident, and wherein Kabhai Kalidas, Sarpanch and Hirabhai Dadabhai were contesting the election for post of sarpanch, and former Sarpanch Kabhai lost and Hirabhai won in the election. He has denied that he belonged to the party of former Sarpanch Kabhai. The accused persons are the persons of Hirabhai, the elected Sarpanch. He has Page 19 of 36 R/CR.A/2512/2008 CAV JUDGMENT denied that names of the accused persons have been dictated at the instance of Kabhai due to enmity of election.
7.22 This witness has denied that when Hasmukh was taken to hospital, he had worn pant and shirt and they were smeared with blood, but according to him, Hasmukh wore only a short at that time and his body was bare. This witness has denied that he was giving false deposition against accused persons.
8. PW. No.2, Galuben Chimanbhai Bariya, is the mother of the victim and the wife of the complainant. In her examination-in-chief she has stated that Chimanbhai, the complainant of this case, is her husband. She is a resident of Shirola, Taluka Dabhoi and she had a son and a daughter. The name of her son is Hasmukh, who is not alive. Her daughter, Tara, has been married at Megha Kui village, and she lives at her matrimonial house. Her house is situated in the Navi Nagari Nishal Street in Shirola village. Only their house is of Bariya caste in the area, and the people of other houses belong to P.V. caste. 8.1 This witness has stated that the incident of her son Hasmukh had taken place on 14/4 last year. 15-20 days before the incident of Hasmukh, they kept to dry wild Babul tree, which was situated next to their house, by cutting it. Thereafter, as the accused, Sanjay, Chhotu and Champa - the mother of Sanjay, came to cut wood of said wild Babul tree, they were asked not to cut the same, and these people Page 20 of 36 R/CR.A/2512/2008 CAV JUDGMENT made a quarrel with them, and Sanjay and Chhotu threw her husband Chimanbhai into wild Babul tree by holding neck. At that time, as there was marriage of Champa's daughter, they did not lodge any police case.
8.2 This witness has stated that she, and her son, Hasmukh, were sleeping by keeping cots side by side on the otla (raised platform) of the house in the night of incident. Her husband, Chimanbhai, was sleeping a little far from them. Their pet dog started barking at about twelve o'clock in the night, and as voice of throat of Hasmukh was heard, she woke up, and she saw Sanjay and Chhotu standing near Hasmukh. Thereafter, Sanjay and Chhotu gave a blow on the part of mouth of her Hasmukh, and thereafter, on the chest part. As one-two blows were given to Hasmukh, and she shouted, her husband woke up, and thereafter also, Sanjay and Chhotu gave two blows on the chest part, and thereafter, both of them escaped into the field of maize after jumping over otla. The accused, Sanjay, and Chhotu gave blows to her son with paliya of cutting sugarcane, which they call 'Katu'. She saw said Katu. When this incident occurred, a bulb of 100 watt was glowing on their otla (raised platform). Therefore, she had eyewitnessed this complete incident. Before the time of this incident, Hasmukh took off his shirt and put it at the pillow, and he was sleeping by wearing the shorts. Police seized clothes of Hasmukh during the investigation. The said clothes were smeared with blood. If said clothes of Hasmukh and the paliya, with which blows were given, Page 21 of 36 R/CR.A/2512/2008 CAV JUDGMENT are shown to her, she can identify. According to this witness, the police had seized a piece of plastic strip of cot, on which Hasmukh was sleeping, during the investigation. After this incident, her husband Chimanbhai immediately went to inform the Sarpanch, and Sarpanch Kabhai came to her house, and Hasmukh was taken to Dabhoi hospital after calling a jeep. The said jeep was of Gandhi Rajnibhai. Hasmukh was driving the said jeep when he was working at the place of Rajni Gandhi.
8.3 This witness was shown the weapon, and after looking at the same, she stated that the weapon was a sickle of cutting grass. She has stated that Hasmukh has not been given blows with this weapon, but with 'katu'. She was shown clothes of Hasmukh and she has identified the same. She was also shown a strip of plastic of the cot of Hasmukh, which she has identified.
8.4 According to this witness, after Hasmukh was taken to Dabhoi hospital, the doctor had declared him dead. The accused persons have chopped off her son Hasmukh in view of keeping enmity of quarrel over wild the Babul tree.
8.5 This witness has further stated that her husband, Chimanbhai, gave a complaint of this incident, and thereafter, the police came to her house for investigation, and seized blood stained soil, strips of cot, etc. According to this witness, the accused, Chhotu, is a nephew Page 22 of 36 R/CR.A/2512/2008 CAV JUDGMENT of Champaben. The other name of said Chhotu is Ramesh and other name of Sanjay is Lallu. The accused persons live in front of their house only. Therefore, she knew them since long. She had identified both the accused persons. She has further stated that the police took her statement after making inquiry in connection with this incident. 8.6 In the cross examination, this witness has stated that her husband was sleeping in the compound at the time of incident. She has admitted that there was a partition of wall between the places where she and Hasmukh, and her husband were sleeping. She has admitted that her street is a populated street. She has also stated that their house is situated on the road in the street, and it is isolated. There are no houses belonging to anyone in the surroundings. The house of Kanubhai Kanjibhai P.V. is situated next to her house, which is unused, and they live in other house in the village. The house of Prabhubhai Ukabhai Rabari is situated in the opposite line of their house, but they do not live in said house. She admitted that the house of Merubhai Muljibhai Rabari is situated in the place next to their compound. They also do not live there, and house of Arunaben Jagdishbhai P.V. is situated next to his house, but they also do not live in their house. This witness has admitted that her husband was sleeping where the unused house of Merubhai Muljibhai Rabari with compound is situated. She has admitted that their house is situated at the end of the road. She has admitted that their house was broken at the time of incident, and they were constructing a new house. Page 23 of 36 R/CR.A/2512/2008 CAV JUDGMENT According to this witness, the engagement of her son, Hasmukh, was fixed with Geeta of Maldhar, Taluka - Dabhoi. She has denied that after breaking engagement of Hasmukh with Geeta, the same was fixed with another girl. She has admitted that when she woke up, Hasmukh was lying in his cot in a profusely bleeding condition, and back part of his bush-shirt got blood stained, and both pyjamas of his pant got blood stained, and handkerchief in the pocket also got blood stained.
8.7 This witness has stated that all the three of them had taken dinner at seven o'clock in the evening on the day of incident. After taking dinner, Hasmukh was at home and watching T.V. She has denied that after killing Hasmukh out of her house by any outsider, he was put in the heavily bleeding condition in the cot in the night. As this witness got emotional during the cross-examination, at the request of the learned advocate, the cross-examination was postponed.
8.8 In the further cross-examination, this witness has admitted that her son, Hasmukh, was working as a jeep driver. She has denied that her son had enmity with many people.
8.9 She has stated that when Hasmukh was taken to Dabhoi in the jeep, she stayed at home, and police jeep came immediately to their house. This witness has stated that the police asked her of the Page 24 of 36 R/CR.A/2512/2008 CAV JUDGMENT relation with the injured and she replied that she was his mother. Thereafter, police made inquiry in the surrounding streets, and Sarpanch Kalidas was also there. She has admitted that the police persons asked as to how the incident occurred, and she stated to them the details of incident, and police persons wrote down the same. After making her inquiry, the police went away, and Sarpanch was sitting at her home. She has admitted that she was at her home only on the next day. She had not met police on the said day. She has admitted that after the police came to her house in the night of the incident and made inquiry, she had stated what she knew on that day. Therefore, she had nothing to state to police, and she had not stated. She has admitted that she and other women relatives were in the house only on the third day and mourning. She had not gone out of home. At the time of deposition, her age was 44 years. 8.10 She has stated that she had not dictated in the statement before police that knife was used in this incident. She has admitted that the dead-body of Hasmukh was brought in the afternoon on the next day of the incident, and thereafter, his funeral ceremony was performed. People of village came to sit at home in the night on the said day. Men were sitting on the otla (raised platform), and women were sitting in the house. She remained in the shock in the house for 2-3 months after incident of Hasmukh. She has denied that when her husband, Chimanbhai, came back to house on the next day, he stated to her that her name had been dictated as a witness. Page 25 of 36 R/CR.A/2512/2008 CAV JUDGMENT 8.11 This witness has denied that as stated by her, no incident had taken place regarding woods of Babul tree.
8.12 This witness has denied that she had not dictated before the police that thereafter, Sanjay and Chhotu gave a blow on the mouth part of Hasmukh. She has denied that she had not dictated in the statement before the police that thereafter, a blow was given on the chest part, or that as 1-2 blows were given to Hasmukh and she shouted, her husband woke up, or that thereafter also, Sanjay and Chhotu gave 2 blows on the chest part or that thereafter, both of them jumped into the field of maize after jumping otla (raised platform) or that the accused Sanjay and Chhotu gave blows to her son or that the said blows were given by paliya used for cutting sugarcane, which they call Katu or that they saw the said katu. She has denied that she had stated about a bulb, but a bulb of 100 watt has not been mentioned. She has denied that she had not dictated in her statement before the police that Hasmukh took off his shirt before the incident and put the same on the pillow, and he was sleeping by wearing shorts.
8.13 This witness has admitted that knife, sickle and katu are three different things. She admitted that she did not know as to what her husband Chimanbhai dictated at Dabhoi.
Page 26 of 36 R/CR.A/2512/2008 CAV JUDGMENT 8.14 This witness has denied that though the accused of this case, Sanjay and Chhotu, have not assaulted as stated by her, an effort had been made to falsely implicate the accused at the instance of people. This witness has denied that throughout the night of the incident, she did not know as to who assaulted her son. She has also denied that someone had killed her son and thrown him. She has denied that she was giving false deposition.
9. After hearing the learned counsel appearing for the parties and after going through the complaint lodged by the father of the deceased, we find that on the date of the incident, the complainant, his wife and the deceased took dinner at 8.00 p.m. (according to the mother of the victim in cross-examination, 7 p.m.) and after switching on the electric light, three beds were made on the otla situated outside the room. It further appears from the complaint that the deceased went to sleep at 9.00 PM., and the complainant and his wife went to view the television inside the house. Subsequently, they came to sleep at about half past ten in the night. Thus, according to the said version, the deceased had gone to bed at 9 O'clock in the night whereas his parents were viewing television in the house up to 10.30 pm, i.e. about one and a half hour after the deceased went to sleep. It is further stated in the complaint that their pet dog was tied along with the cot of the complainant while he went to sleep. There is also no dispute that all the three persons were sleeping within a distance of about 12 ft. to 15 ft. in three different cots. Page 27 of 36 R/CR.A/2512/2008 CAV JUDGMENT
10. PW No.3, the mother of the deceased, on the other hand, stated that at about 12 O'clock in the night as she heard some peculiar type of voice was coming from the throat of Hasmukh, she woke up and at that time she saw the two accused persons were standing near Hasmukh and even subsequently, the two accused persons gave blows at the mouth and chest parts of Hasmukh, and as one or two blows were given to Hasmukh, she shouted and hearing her shouts, her husband woke up and thereafter also, the accused gave two further blows on Hasmukh and thereafter, both of them escaped into the field. On the other hand, the father of the deceased in his deposition has stated that all the three persons were sleeping outside the house and as his wife suddenly shouted saying that Hasmukh had been chopped, he woke up and saw that Hasmukh was lying on the cot and his mother was pressing the throat of Hasmukh with clothes to stop bleeding. From these statements, it is clear that when the complainant woke up, the assailants had already left, as otherwise it would not have been possible for his wife to press the neck of her son to stop bleeding. We, therefore, find that the complainant cannot be said to be eyewitness of the incident even if we accept his own statements. This witness even said that her husband was sleeping where the unused house of Merubhai Muljibhai Rabari with compound is situated. No evidence has been produced to show the distance between the place of incident and the unused house of Merubhai. If we accept this part of the statement then we Page 28 of 36 R/CR.A/2512/2008 CAV JUDGMENT have to disbelieve the evidence of the husband that he was sleeping within a distance of 12-15 feet and in that event, he cannot be the eyewitness of the incident.
11. At the same time, it is impossible to believe that the accused persons, even after the complainant and his wife woke up, gave further two blows on the victim - knowing well that they are known persons.
12. We further find that according to the statement of the father of the deceased, their pet dog was tied to the cot and hearing the barking of the dog, he woke up.
13. From the above statements of the two alleged eyewitnesses, it is very difficult to believe that though the pet dog was tied with the cot of the father of the deceased, at the dead of the night, the two accused persons, who are next-door neighbors would dare to come and give so many blows upon the victim even though the mother of the deceased had woken up and the father of the deceased was also present at the spot. It is also very difficult to believe that the two neighbours in the presence of a pet dog tied with the cot within 15 ft. will take such risk of killing.
14. On the other hand, we have noticed that Hasmukh went to sleep at 9 p.m., and his parents went inside the house to watch TV till Page 29 of 36 R/CR.A/2512/2008 CAV JUDGMENT 10.30 pm. Thus, till 10.30 pm., his parents were inside the house viewing TV while the victim alone was outside and there was no dog tied with the cot at that time.
15. It further appears that although both the witnesses have stated that when Hasmukh went to sleep he wore only a short, his full pants, shirt and even the handkerchief inside the pocket were all smeared with blood. It is, thus, very difficult to believe that a person who went to sleep with bare body wearing only the shorts, his full pants, shirt and handkerchief lying inside the pocket of his full pants could be smeared with blood. We have already pointed out that at the dead of night, if a pet dog is tied with the cot of the complainant, before the arrival of the outsider, the dog must start barking and it is impossible to believe that although the pet dog was tied with one of the three cots kept in the otla at a distance of nearly 12 ft. to 15 ft., two outsiders will be able to enter the otla of the house and give repeated blows and kill the deceased.
16. It further appears from the evidence on record that all the panch witnesses except PW.15 became hostile. The said witness became panch witness along with another pancha on three occasions. It appears that on 14th April 2007, he became a pancha of recovery of the wearing apparels of the deceased. On the same day, he was again called at the police station at about 12.20 hours in the afternoon when the accused persons were in the custody of police Page 30 of 36 R/CR.A/2512/2008 CAV JUDGMENT and other officers were also there. They applied some solution in the hands of the accused persons who were in police custody and their hands were placed on a substance like paper and then were made to rub their hands, and such fact was noted in a panchnama in the presence of the said P.W. No. 15. The said witness was further called at the police station, according to this witness, "one or two days" of drawing of the earlier panchnama. The purpose of calling him on this occasion was to draw a panchnama of recovery of weapon, viz. sickle, from the house of the accused. The said witness, however, in the cross-examination has stated that "leaving one day" after the police called him to be a witness of the first two panchnama, the police called him in the police station. He has further stated that when he was called for the third time in the police station for becoming a pancha for recovery of weapon, it might have been about 7 to 8 hours in the morning and the panchas stayed about 5 minutes in the police station and the police took his signature on a panchnama. 16.1 PW. No. 16, the Investigating Officer, in his examination-in-chief has stated that while recovering the sickle from the roof of the kitchen of the accused, there were blood stains on it and it was seized in the presence of the panchas. When he was shown the said panchnama being Exh. 31, he has specifically stated that the panchas made their signature on the same at the spot.
16.2 Thus, the PW. No.15 stated that he put his signature at the Page 31 of 36 R/CR.A/2512/2008 CAV JUDGMENT police station whereas the Investigating Officer, PW. No.16, stated that the panchas signed the same at the spot. We, therefore, are unable to approve the mode of proving of the alleged recovery of the sickle. We have already pointed out that the mother of the victim stated that a knife was applied on her son and she has, thus, not stated that any sickle was used on the body of her son. 16.3 The said Investigating Officer, PW. No. 16, in his cross- examination has admitted that during investigation, nothing was mentioned about cutting of the tree in the panchnamas and he has admitted that no evidence has been collected as to whether any tree has been cut prior to the incident or that it was in the ownership of the complainant, Chimanbhai. He has further stated that after going to Pramukh Swami Hospital, he interrogated the father of the deceased but at that time, the father of the deceased did not give any detailed information about the incident. He has further admitted that during the entire night of the incident, he did not take the statement of the mother of the deceased. He has further stated that he did not know as to who was the Doctor who examined Hasmukh at the night of the incident and declared him dead. He has further stated that he did not try to know as to who was that Doctor or take his statement as he did not find it necessary. He has further stated that he did not obtain any case papers relating to the deceased from the Pramukh Swami Hospital. He has further admitted that it was informed in Pramukh Swami Hospital as to on which parts of the Page 32 of 36 R/CR.A/2512/2008 CAV JUDGMENT body, the deceased sustained injuries and such information was also given in the vardhi. He has further stated that when the complainant came to the police station, he was alone although the complainant in his statement has stated that he was accompanied by leading persons of the village. He has further admitted that although in the complaint of Chimanbhai, knife has been mentioned as the weapon, no knife was seized during the investigation but a sickle was seized. He has further admitted that a knife, a katu used for cutting sugar cane and a sickle are three different weapons and no katu was seized during the investigation, He has further admitted that during post- mortem, although a bottle of blood sample was sent to Forensic Science Laboratory, he did not remember whether it was sealed in the police station before sending to the FSL. He has further stated that he arrested the accused persons on 15th April 2007 at 17.45 hours though they were in custody earlier for interrogation. He has admitted that the mother of the victim had not dictated in her statement before him that "thereafter, Sanjay and Chhotu had inflicted blows at the face of my Hasmukh. Thereafter, blows were inflicted at the part of chest and as Hasmukh was given one or two blows, I shouted and therefore my husband woke up. Thereafter also Sanjay and Chhotu inflicted two blows at the part of his chest. They ran in the field of corn". But it was stated that they had ran towards road. This witness admitted that Galubahen had also not stated such fact in her statement before him that "the blows which were inflicted by the accused Sanjay and Chhotu to my son were inflicted with a Page 33 of 36 R/CR.A/2512/2008 CAV JUDGMENT paliya which is used to cut sugarcane and we call it katu and I had seen that katu." which shows the improvement made during deposition.
17. It further appears that although the wearing apparel of the accused was recovered, there was no trace of blood thereon. It also appears from the judgment that even the learned Sessions Judge has disbelieved the version of recovery of muddamals but the learned Judge has convicted the accused persons on the sole ground that the parents of the deceased had eyewitnessed the incident.
18. We are quite conscious that a person can be convicted for murder on the basis of the evidence of even a single witness, provided however, that such eyewitness must be wholly reliable. In the case before us, we find that an absurd story has been made out that in the presence of a pet dog of the house, two neighbours came and killed the deceased in a brutal manner when his parents were also allegedly sleeping side by side.
19. It further appears that there was no injury on the body of either of the two eyewitnesses and this fact suggests that they must have come to the spot after the death of the deceased who went to sleep one and a half hours before the alleged eyewitnesses, his parents, came after viewing television.
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20. Moreover, as regards the motive pointed out by the prosecution, it appears that apart from the parents, no other witnesses has deposed regarding the prior incident of altercation between one of the accused and his mother with the father of the deceased. The appellants have admitted that no police complaint was lodged regarding the altercation and after the alleged incident, there was no further unpleasant incident for the next two months. Such being the position, such a minor altercation, even if the said story is assumed to be true, cannot be a motive for murder.
21. On consideration of the above facts, we are of the view that in the facts of the present case, it is not possible to accept the version of the parents of the deceased as they are not "wholly reliable witnesses". We, therefore, find that the learned Sessions Judge, even after finding that neither motive nor the recovery of the weapon was proved nor was any blood found on the wearing apparel of the accused, committed substantial error of law in treating those two witnesses as "wholly reliable witnesses" to uphold conviction of the two accused persons who were neighbours of the victim.
22. We, therefore, set aside the order of conviction and sentence. The appeal is, thus, allowed. The appellants are acquitted of the offence charged against them in the present case. The appellants be set at liberty forthwith, if they are not wanted in any other criminal case.
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Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 36 of 36