Gujarat High Court
Motibhai vs State on 28 October, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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CR.A/1033/2002 19/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1033 of 2002
With
CRIMINAL
APPEAL No. 459 of 2003
With
CRIMINAL
APPEAL No. 458 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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MOTIBHAI
FATHABHAI PARMAR & 5 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
HM PARIKH AND MR HARDIK DAVE for Appellant(s) : 1 - 6.
MS ML
SHAH,APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 28/10/2010
CAV
JUDGMENT
Criminal Appeal No. 1033/2002 has been filed by original accused no.1 to 6 challenging judgement and order dated 22.11.2002 passed by learned District Judge, Nadiad in Sessions Case No. 7 of 1998. By the said judgement, learned Sessions Judge was pleased to convict all these appellants for offence punishable under Section 201 read with Section 34 of the IPC and sentenced them to rigorous imprisonment for one year and fine of Rs. 500/-. Additionally, he was also pleased to convict appellant no.5 original accused no.5 for offences punishable under Section 302 read with 34 of IPC and sentenced him to life imprisonment. He was however, pleased to acquit rest of the accused i.e. accused no. 7 to 10 of all the charges.
Criminal Appeal No. 458/2003 has been preferred by the State seeking enhancement in the sentence awarded by the learned Judge in the said judgement to original accused no.1 to 4 and 6 for offence punishable under Section 201 read with Section 34 of IPC.
State has also preferred Criminal Appeal No. 459/2003 and challenged the judgement of the Sessions Court insofar as accused no. 7 to 10 were acquitted of the charges under Sections 302, 201 read with Section 34 of the IPC.
Appeal was placed before the Division Bench of the High Court. Learned Judges forming the Bench had difference of opinion. One learned Judge (Hon'ble Mr. Justice R.H.Shukla) in his order dated 6.7.2010 expressed his view that :
35. Therefore, in view of the discussions made hereinabove, we are of the considered opinion that the impugned judgment and order passed by the learned Joint District Judge and 3rd Fast Track Court, Nadiad dated 22.11.2002 in Sessions Case No. 7 of 1998 recording conviction of A-5 for the offence under Section 302 read with Section 34 of IPC cannot be sustained and deserves to be quashed and aside.
The conviction of A-1 to A-4 and A-6 for the offence under Section 201 read with Section 34 of IPC also cannot be sustained and deserves to be quashed and set aside. The judgment and order recording the acquittal of A-1 to A-4 and A-6 for the offence under Section 201 read with Section 34 of IPC is sustained.
36. Accordingly, the Criminal Appeal No. 1033 of 2002 filed by A-1 to A-4 and A-6, challenging the conviction under Section 201 read with Section 34 of IPC is hereby allowed and the Appeal succeeds. The conviction of A-1 to A-4 and A-6 for offence under Section 201 read with Section 34 of IPC is hereby quashed and set aside.
37. The Criminal Appeal No. 458 of 2003 and Criminal Appeal No. 459 of 2003 filed by the State for enhancement as well as against the acquittal of A-7 to A-10 for all the offences, are hereby dismissed.
On the other hand, another learned Judge (Hon'ble Mr. Justice Jayant Patel) in his order dated 6.7.2010 opined that the Sessions Court rightly convicted accused no.5 of offence punishable under Section 302 of the IPC. He was also of the opinion that though learned Judge was too lenient in handing down the punishment for offence under Section 201 read with Section 34 of the IPC, to the convicted accused, he refrained from interfering with the sentence for the said offence considering that learned Judge exercised his discretionary powers. Hon'ble Judge was however, of the opinion that learned Sessions Judge committed an error in acquitting original accused no.10 for offence punishable under Section 201 of IPC since his presence was fully established along with other co-accused who were found guilty for such offences. He expressed his conclusion in the following manner :
17. In the result, appeal against conviction of A-5 for the offence under Section 302, and for the offence under Section 201 read with Section 34 of IPC deserves to be dismissed and the appeal of A-1, A-2, and A-6 against the conviction under Section 201 read with Section 34 of IPC deserves to be dismissed. The appeal against conviction of A-3 and A-4 for the offence under Section 201 read with Section 34 of IPC deserves to be allowed.
Further, the appeal of the State against acquittal of A-10 deserves to be allowed as observed earlier by convicting A-10 for the offence under Section 201 read with Section 34 of IPC and the sentence to be imposed is of one year imprisonment with the find of Rs.50/- upon A-10.
18. The appeal preferred by the State for enhancement of sentence against A-1, A-2, A-3, A-4 and A-6 deserves to be dismissed. Further, the appeal against acquittal of A-7, A-8 and A-9 preferred by the State deserves to be dismissed.
From the above, it can be seen that there was divergence of opinion between the two learned Judges on the question of conviction of accused no.5 for offence punishable under Section 302 of the IPC, on the question of conviction of accused no. 1,2 and 5 for offence punishable under Section 201 read with Section 34 of the IPC. There was also disagreement regarding accused no.10. While one learned Judge was of the opinion that accused no.10 was rightly acquitted by the Sessions Court, another learned Judge was of the opinion that such acquittal was not justified and he be convicted for said offence.
There was however, agreement between two learned Judges to the fact that accused no.3 and 4 should be acquitted for the charges under Section 201 read with Section 34 of the IPC and further that there is no case for enhancement of sentence for offence under Section 201 read with Section 34 of the IPC against the convicted accused.
In view of the above, it can be seen that insofar as State Appeal being Criminal Appeal No. 458/2003 is concerned, both the learned Judges were of the opinion that same deserves to be dismissed.
With respect to Criminal Appeal no. 1033/2002, filed by the original accused also, learned Judges concurred to the extent that appeal of original accused no.3 and 4 i.e. appellants no. 3 and 4 is required to be allowed.
Before going to the merits of the case, I must bear in mind role of a third Judge in case of a reference of this nature.
Reference is made under Section 392 of the Code of Criminal Procedure which provides as under :
392.
Procedure where Judges of Court of Appeal are equally divided.
When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion:
Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges.
11.1 In case of Tanviben Pankajkumar Divetia v. State of Gujarat reported in AIR 1997 Supreme Court 2193, Apex Court observed as follows :
6.
Where a case is referred to a third Judge under Section 392 Cr. P.C., such Judge is not only entitled to decide on what points he shall hear the arguments, if any, but his decision will be final and the judgment in the appeal will follow his decision. Precisely for the said reason, it has been held by the Allahabad High Court that if one of the Judges, who had given a different opinion ceases to be Judge, the Judgment may be pronounced by another Bench of the High Court, the reason being that the ultimate decision in the appeal is to abide by the decision of the third Judge and pronouncement of the decision in conformity with the decision of the third Judge is only a formality (AIR 1948 All 237).
7. Section 392 Cr.P.C. clearly contemplates that on a difference of opinion between the two judges of the Division Bench, the matter is to be referred to the third Judge for his opinion so that the appeal is finally disposed of on the basis of such opinion of the third Judge. In the scheme of Section 392 Cr.P.C., the view that third Judge, as a rule of prudence or on the question of judicial etiquette, will lean in favour of the view of one of the Judges in favour of acquittal of the accused, cannot be sustained. The Calcutta High Court has held in Nemai Mandal Vs. State of West Bengal (AIR 1966 Cal 194) that the third Judge need not as a matter of fact, lean in favour of acquittal even if one of the judges had taken such view. It has been held that benefit of doubt may be given only if third Judge holds that it is a case where accused is to be given benefit of doubt. There is no manner of doubt that the Judge has a statutory duty under Section 392 Cr.P.C. to consider the opinions of the two Judges whose opinions are to be laid before the third Judge for giving his own opinion on consideration of the facts and circumstances of the case. In Dharam Singh Vs. State of U.P. (1964 (1) Crl.L.J. 78) this court has indicated that it is the duty of the third Judge to consider the opinion of his two colleagues and to give his opinion. Therefore the learned third Judge has rightly discarded the contention that as a rule of prudence or on the score of judicial etiquette, he was under any obligation to accept the view of one of the Judges holding in favour of acquittal of the accused appellant.
11.2 In case of Sajjan Singh v. State of Madhya Pradesh reported in AIR 1998 Supreme Court 2756, discussing several previous decisions on the issue, Apex Court held and observed as under :
9.
Statement of law is now quite explicit. It is the third Judge whose opinion matters; against the judgement that follows therefrom that an appeal lies to this Court by way of special leave petition under Article 136 of the constitution or under Article 134 of the constitution or under Section 379 of the Code. The third Judge is, therefore, required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact third Judge is not bound by any such opinion of the division Bench. He is not hearing the matter as if he is sitting in a three Judge Bench where the opinion of majority would prevail. We are thus of the opinion that Prasad, J. was not right in his approach and his hands were not tied as far as three appellants, namely, Gajraj Singh, meharban Singh and Dule Singh before him were concerned in respect of whom both Judges of the Division Bench opined that they were guilty and their conviction and sentences were to be upheld.
11.3 In case of Radha Mohan Singh v. Lal Saheb & ors. reported in AIR 2006 Supreme Court 951, the Apex Court negated the contention that third judge should as a rule of prudence or on the principle of judicial etiquette lean in favour of the view taken by the learned judge who had recorded the opinion for acquittal of the accused.
11.4 In case of State of Andhra Pradesh v. P.T. Appaiah and another reported in AIR 1981 SC 365, referring to the previous decisions on the issue, Apex Court rejected the contention that in case of reference, third Judge should only deal with the difference of two Judges and not with the whole case.
Bearing in mind above judicial pronouncements, it is my duty to ascertain from the record whether learned Sessions Judge committed any error in the judgement under challenge.
Both the learned Judges of the High Court have given the background leading to the said case. However, for the sake of continuity of narration, I may recount the prosecution case and evidence on record briefly before undertaking evaluation of evidence on record.
From the charges framed by the learned Sessions Judge at exh.9, prosecution case that emerges is that on 28.1.1997 at about 8 O' clock in the evening, all the accused had called one Girishbhai Purshottambhai at the house of Pratapbhai Ambalal Parmar(A-5) in a party where accused had quarreled with him and had given him kick and fist blows. When he fell down, Motibhai Fatabhai (A-1) gave a knife blow on the back of the head which resulted into death of Girishbhai Purshottambhai. Reason for such assault was that deceased Girishbhai Purshottambhai used to spend many days at the house of his distant maternal uncle Sakrabhai Desaibhai Parmar. One Khodabhai Chandabhai(A-9) was his neighbour. Deceased had illicit relations with Jashiben, daughter of Khodabhai Chandabhai(A-9). Jashiben also had relations with Vinubhai Fatabhai(A-2). Motibhai Fatabhai(A-1) had relations with wife of Sakrabhai Desaibhai. On account of such enmity all the accused beat up Girishbhai Purshottambhai with intention to cause his death. After that, with intention to destroy the evidence, his dead body was thrown away in the field of Budhabhai Vaghjibhai. In the said manner all the accused had committed offences punishable under Sections 302, 201 read with Section 34 of the IPC. This in the nutshell was charge against all the accused.
FIR was lodged by Himmatbhai, brother of deceased. It has come on record that the complainant was not satisfied by nature of investigation carried out by the police. He had therefore, approached High Court by filing Special Criminal Application No. 325/1997 which was disposed of on 17.3.1997. Pursuant to observations made in the said order, investigation was taken over from Circle Inspector and handed over to LCB, wherein statements of some of the witnesses previously though recorded were once again recorded by new investigating agency.
At this stage, relevant portion of the evidence of important witnesses may be noted.
16.1 Dr. Jashbhai Galabhai Vaghela, PW-1 who had carried out postmortem was examined at exh.21. In his chief examination, he stated that he found the stab wound behind the head of the deceased ante-mortem. He also opined that said injury had led to damage to the spinal cord and death was due to shock on account of such injury. Such injury was in ordinary course of events sufficient to cause death. He further stated that such injury could be caused with a sharp edged weapon. He was shown muddamal article no.7, a Rampuri knife. He opined that such injury could have been caused with said weapon.
In the cross examination, however, Doctor could not state with certainty that injury could have been caused by weapon muddamal article no.7. This aspect was further probed by the defence. He was asked about different injuries which a knife with only one sharp edge could cause as compared to knife where both edges are sharpened. He opined that in the former case one margin of wound would be clean cut whereas other side of the wound would be serrated. He conceded that injury received by the deceased was more likely to have been caused by a weapon with both edges sharpened. Eventually he also conceded that looking to the size of the wound and looking to the size of the weapon recovered, injury would not tally with the weapon.
16.2 Informant Himmatbhai Parshottambhai Parmar, PW2, brother of the deceased was examined at exh.28. In the morning of 29.1.1997, he was informed by his neighbour Butabhai Vaghjibhai that his brother was found sleeping in the field. When he went there along with other people, he found his brother was dead with face down. He had received injury on the back of the head. Blood was oozing out from there. On 30th, he was told by Jaisingbhai Mohanbhai that in the night of 28th, he had seen accused beating up deceased Girishbhai. He was also informed by Jaisingbhai that in the night of 28th he had seen some of the accused in the field carrying Girishbhai on the back. He was also informed by Ramabhai that Pratapbhai Ambalal was carrying Girishbhai on his shoulder. He stated that he had learnt that on account of illicit relations of the deceased, he was beaten up by the accused.
In his cross examination, he admitted that on 29.1.1997, he had given application in writing to the Circle Police Inspector. He admitted that by then though he had made lot of efforts, he could not ascertain with any certainty who were involved in murder of his brother. In such application, he had given names of only seven persons whom he suspected. He admitted that Raisingbhai had also shared with him that he suspected these seven persons in the offence. He admitted that till 21.4.1997, except for these seven persons, he had not received information about involvement of any more persons.
16.3 One Jaisangbhai Mohanbhai Parmar, PW-3, was examined at exh.32. In my opinion, he is the most important witness of the entire case. In his deposition, he stated that a bus trip to Pavagadh(a place of pilgrimage) was organised by him and Vinubhai Fatabhai. Bus was to start on the night of 28th and they were to return in the night of 29th. All passengers were informed that bus will leave at around 9 O' clock at night. Since Motibhai Fatabhai(A-1), Vinubhai Fatabhai(A-2), Jayantibhai Fatabhai(A-4), Maganbhai Dhulabhai(A-6), Raijibhai Maganbhai(A-7) and Melabhai Pratapbhai had enrolled their names, he had gone to call these persons between 8 to 8:30. He first went to house of Pratapbhai Ambalal(A-5), at which time he could hear lot of noise. He thought there must be some quarrel. He went there. In Raveshi (front room or semi-covered protruding part of the house) of Pratapbhai, he had seen Girishbhai being beaten up by Motibhai Fatabhai(A-1), Maganbhai Dhulabhai(A-6), Raijibhai(A-7), Maganbhai (Mahendrabhai A-3?), Jayantibhai Fatabhai(A-4), Pratapbhai Ambalal(A-5) and Vinubhai Fatabhai(A-2). These people were giving kick and fist blows to Girishbhai. Four more persons namely Ramabhai Dhulabhai(since deceased), Khodabhai Chandubhai(A-9), Babu Rama(A-10) and Fatabhai Dhulabhai(A-8) were standing outside. He went closer upon which Babu Rama(A-10), Rama Dhula and Fata Dhula had asked him to leave immediately and threatened him that if he told this to anyone, he would be done to death. In the meantime, the beating continued. He got scared and returned. While he was returning he could hear Girishbhai shouting for help. He thereafter, went to Pavagadh along with passengers who had come. Next day, they returned between 9 and 10(at night), when he learnt that Girishbhai was killed. On 30th, he informed Himmatbhai about the incident. His statement was recorded by the police on 3rd. He had learnt that on account of his illicit relations with Jashiben, Girishbhai was done to death.
In the cross examination, he stated that when he gave names to Himmatbhai, he had told him that he does not know all the names but he could give only some of them. He admitted that he had accompanied Himmatbhai when he had gone to High Court to swear affidavit prepared by the advocate. Prosecution also could extract certain improvements made compared to his previous statement made before the police. He stated that LCB had seized the notebook of names of the passengers which contained names of Motibhai Fatabhai(A-1), Raijibhai Maganbhai(A-7), Maganbhai Dhulabhai(A-6), Fatahbhai Dhulabhai(A-8), Vinubhai Fatabhai(A-2) and Melabhai Pratapbhai etc. He stated that police had recovered notebook by drawing panchnama. He stated that during the entire trip he did not speak to anyone about the incident of Girishbhai. He further admitted that even after returning from the trip, till he met Himmatbhai, he did not speak to anyone about the incident.
16.4 Raisinhbhai Bhaijibhai Chauhan, PW-12, was examined at exh.53. He stated that in the night of 28th, he was waiting at the tube-well for full light(three phase power) to start his motor pump to irrigate the wheat field. He heard some noise. When he put his torch on, he found Vinubhai Fatabhai(A-2), Motibhai Fatabhai(A-1), Pratapbhai Ambalal(A-5), Maganbhai Dhulabhai(A-6) and Baburama(A-10) and Rama Dhula. He had seen them carrying Girishbhai. Next day when he got up late, he learnt that Girishbhai's body is found in the field of Budhabhai.
In his cross examination, he admitted that before Himmatbhai lodged the FIR, he had told him about the said incident. Himmatbhai had told him that he is going to the police station for giving complaint and asked him if he knew anything about it.
16.5 Ramabhai Punambhai Parmar. PW-13, exh.55 stated that in the night of the incident, between 9 and 10, he had gone in the open to answer nature's call with a torch. He had seen Motibhai Fatabhai(A-1), Vinubhai Fatabhai(A-2), Maganbhai Dhulabhai(A-6), Pratapbhai Ambalal(A-5), Baburama(A-10) and deceased Rama Dhula carrying Girishbhai. Pratapbhai was carrying him on his shoulder. Though he had asked where they are carrying him, they went away without answering.
In the cross examination, he stated that Matar police (which statement was recorded before LCB took over investigation on or around 15.4.2010) had recorded his statement accurately. He however, denied that in his statement he had not given names of any of the accused. He denied that in his police statement, he had not stated that he was carrying torch. He admitted that when he had given names of six accused, Himmatbhai was present with him.
16.6 Navdhanbhai Jaisingbhai Jadav, PW-14, was Police Inspector in LCB. He had taken over investigation on or around 18.4.1997. He had recorded further statements on 21.4.1997. He had recovered the knife allegedly used in commission of the offence. Same was discovered at the instance of accused no.5 by drawing panchnama. Though panch witness had turned hostile, prosecution sought to prove such discovery through IO. He however admitted that discovery of the weapon at the instance of Pratapbhai Ambalal(A-5), was not of a weapon according to the accused used by him. He admitted that prior to 21.4.1997, names of none of the accused were disclosed.
16.7 Exh.61 is the discovery panchnama which records that Pratapbhai Ambalal(A-5)had taken Panchas to a house which was locked. Lock was opened. He showed the place at the centre of room where Girishbhai was killed. From the roof of the house, he took out a knife saying that this was given to him by Motibhai Fatabhai(A-1) for hiding.
On the strength of the above evidence, one learned Judge(Hon'ble Mr. Justice R.H.Shukla) was of the opinion that there is insufficient evidence to convict the accused. It was opined that the discovery of knife at the instance of A-5 was not with respect to relevant fact at issue, since he could not make statement on behalf of the other accused. Such discovery therefore, would not be a clinching evidence to sustain the conviction. Learned Judge was of the opinion that this is a case of circumstantial evidence and the chain of all circumstances leading to inescapable conclusion of hypothesis of guilt of the accused is not complete.
On the other hand, another learned Judge (Hon'ble Mr. Justice Jayant Patel) relied on the observations of the Apex Court in case of Devender Pal Singh v. State of NCT of Delhi and another reported in 2002 (5) SCC 234, that a Judge does not preside over a criminal trail merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Learned Judge was of the opinion that there was reliable evidence to convict Pratapbhai Ambalal(A-5) for offence under Section 302 of the IPC. Learned Judge relied on evidence of Jaisangbhai Mohanbhai Parmar PW-3, Raisinhbhai Bhaijibhai Chauhan PW-12 and Ramabhai Punambhai Parmar PW-13. Learned Judge also placed heavy reliance on discovery of knife at the instance of A-5.
From the evidence on record, briefly noted above, it emerges that Dr. Jashbhai Galabhai Vaghela, PW-1, though initially stated that fatal injury could be caused by weapon seized, in the cross examination he substantially changed his opinion stating that seized weapon would lead to injury where one edge would be clean cut and other would be serrated which was not the case in the present incident. Comparing the size of the wound and size of weapon also he stated that it is unlikely that weapon in question would have been used for causing such injury. It is true that when there is clear ocular evidence on record, expert's evidence would not take precedence. In the present case however, there is no eyewitness account on who gave the fatal blow and which weapon was used. In fact, none of the witnesses had any knowledge about such details. Even Jaisangbhai Mohanbhai Parmar PW-3 who claimed to be an eyewitness to the deceased Girishbhai being assaulted by some of the accused, did not refer to a knife being used during such thrashing. Doctor's evidence on seized weapon unlikely to have been used for causing fatal injury thus becomes vital.
Before evaluating evidence of other witnesses, one more factor which needs to be noted is that though as per the charge, prosecution version was that deceased Girishbhai was beaten up by the accused on account of his illicit relations with one Jashiben, there is no evidence whatsoever brought in the Court to this effect. None of the witnesses claim any personal knowledge about such relations or the motive for committing offence. All witnesses notably Himmatbhai, PW-2 and Jaisangbhai Mohanbhai Parmar PW-3 stated that they had heard about such illicit relations which was the cause for commission of offence.
Deposition of Himmatbhai PW-2, does not throw any light on the manner in which incident took place. He obviously was not eyewitness. He had no personal knowledge. He was only informed that his brother was found lying in the field. Upon inquiry, he found that he has died. What comes on record through his deposition is that he was unhappy in the manner in which investigation was carried. He had therefore, moved Gujarat High Court for transfer of investigation. Pursuant to observations made in the order passed by the High Court, investigation was handed over to LCB on or around 18.4.1997. Names of the accused surfaced only thereafter. What is however, significant is, in his FIR, he did not mention names of any persons whom he suspected for the offence. This becomes significant as will be elaborated later on since as per Raisinhbhai Bhaijibhai Chauhan, PW-12, he had informed Himmatbhai-complainant about the incident on the previous night when he had seen some of the accused carrying Girishbhai before Himmatbhai had gone to police to lodge FIR. Despite which, Himmatbhai did not disclose names of any persons whom he suspected would be involved in the offence. It is not the case of Himmatbhai that FIR was not recorded accurately.
Deposition of Jaisangbhai Mohanbhai Parmar PW-3 who claims to have witnessed the beating of Girishbhai needs to be scrutinised closely. His presence at the scene of offence is sought to be explained stating that he had organised trip to Pavagadh. Some of the accused had enrolled themselves for such trip. At about 8:30 in night, he had gone where house of accused no.5 and others were situated to call them, whereupon he saw seven accused inside the house beating up Girishbhai and four were standing outside. He was challenged by them, threatened to leave immediately and not to reveal this to anyone upon which he boarded the bus and travelled to Pavagadh and returned next night with other passengers.
Demeanor of this witness is extremely unusual. After having witnessed the thrashing of a person whom he knew and whose family he knew, without disclosing this to anyone he simply boarded the bus and took the trip. Before leaving he does not inform any other villager or family members of Girishbhai. During the trip, he does not disclose this incident to anyone. After coming back also he goes to sleep and makes no disclosure till 30th when according to him he informed the details to Himmatbhai, brother of the deceased. It is not the case of the prosecution nor of this witness that accused were hardened criminals or that they were dreaded in the village for their past criminal activities or that they were otherwise headstrong people. No such suggestion has come on record. I find it extremely unusual that a person after seeing a man being beaten badly, hears him shouting for help, simply walks away and does not speak about the same to anyone for more than 36 hours. Normal human tendency would be to inform his family members or some other persons in village. Even if he was too scared to do so, it is well-nigh impossible to believe that he would not speak to any co-passenger whom he could trust during his full trip. He does none of these. Additionally, though this witness stated that notebook in which he had written the names of the persons who were to travel was recovered by the police by drawing panchnama, no such notebook was produced at the time of trial. If such notebook was produced and proved, we would have come to know whether all or any of the accused had enrolled their names for travelling to Pavagadh. This would have corroborated the version of the witness that he had gone to call the accused since it was about time for the bus to leave. Entire story of this witness having gone to call some of the accused for travelling to Pavagadh at which point of time he saw beating up of Girishbhai becomes unreliable and shaky.
Testimony of Raisinhbhai Bhaijibhai Chauhan, PW-12 also needs to be discarded. Firstly, he is a chance witness. After having asked the accused where they were carrying Girishbhai, he shows no further curiosity. If, as he stated, with the help of torch he could see all the accused and also could recognise Girishbhai who according to him was being carried on shoulder of one of them, he would have realised that Girishbhai was not in normal condition. Girish had received stab injury. His clothes and those of the person carrying him would be blood soaked. This should have alarmed him or at-least be more curious. More significantly, he stated that he had narrated this incident to Himmatbhai before he had gone to file complaint since Himmatbhai had told him that he is going to police station to lodge the complaint. Himmatbhai in his FIR does not mention this incident, nor as already noted, gives names of such persons as suspects. Surely, if as stated by Raisinhbhai Bhaijibhai Chauhan, PW-12, he had told Himmatbhai about the incident before lodging of FIR, names of such accused would find place in the list of suspects.
Ramabhai Punambhai Parmar PW-13 also cannot be relied upon. He had stated that Matar police had recorded his statement accurately. We may recall that such investigation was carried out before such investigation was handed over to LCB. Navdhanbhai Jaisingbhai Jadav, PW-14, who was Police Inspector in LCB, however in his deposition stated that till 21.4.1997, names of none of the accused were disclosed. Thus this witness has made material improvement as compared to his previous statement before the police.
I have not based my above conclusion on any discrepancies or improvements of statements of other witnesses as compared to their initial statement before the police since the complainant was agitating that investigation was not being properly carried out. After the complainant filed petition before the High Court, investigation was handed over to LCB. Further statements of the witnesses were recorded. However, in case of witness Ramabhai Punambhai Parmar PW-13, he agreed that his statement was accurately recorded by Matar police. This is directly in conflict with evidence of Navdhanbhai Jaisingbhai Jadav, PW-14, IO that names of none of the accused were disclosed prior to 21.4.1997.
In the result, I find that there is insufficient and unreliable evidence to bring home any of the charges. Total picture that emerges is as follows :
1) Though Jaisangbhai Mohanbhai Parmar PW-3, claimed to have seen beating up of Girishbhai, he was not a witness to the knife blow being given.
Quite apart from my belief that this witness is not reliable, he could not obviously state who had given fatal blow.
2) Though the charge framed was that such blow was given by Motibhai Fatabhai(A-1), he has been acquitted for offence under Section 302 of the IPC and instead learned Sessions Judge convicted Pratapbhai Ambalal(A-5) against whom there was no direct allegation of having used such weapon in commission of offence.
3) Though extramarital relation was shown to be motive for commission of offence, no evidence was brought on record in this regard.
4) Though knife believed to have been used for commission of offence was discovered at the instance of Pratapbhai Ambalal(A-5), he only stated that such knife was given to him by Motibhai Fatabhai(A-1) for hiding. Such disclosure therefore, cannot be covered under Section 27 of the Evidence Act.
5) Medical evidence of Dr. Jashbhai Galabhai Vaghela, PW-1, performing postmortem does not support use of seized weapon for causing fatal injury. No blood was found from the knife.
Cumulative effect of above facts in my opinion would be that evidence on record cannot be stated to be laying proof beyond reasonable doubt about the incident. In my opinion, therefore, none of the accused could be convicted with help of such evidence.
Under the circumstances, I concur with the view of Hon'ble Mr. Justice R.H. Shukla and hold that all accused are required to be acquitted.
Criminal Appeal No.1033/2002 against conviction is allowed. Judgement of the Sessions Court dated 22.11.2002 is set aside. All accused are acquitted.
Criminal Appeal No. 459/2003 filed by the State is dismissed.
Criminal Appeal No.458/2003 filed by the State stood dismissed by virtue of order dated 6.7.2010 passed by both learned Judges.
Ordered accordingly.
(Akil Kureshi,J.) (raghu) Top