Gujarat High Court
The State Of Gujarat vs Kaushikbhai Ravjibhai Patel & ... on 10 June, 2015
Author: Anant S. Dave
Bench: Anant S. Dave, S.H.Vora
R/CR.A/1774/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1774 of 2006
With
CRIMINAL APPEAL NO. 1893 of 2005
With
CRIMINAL REVISION APPLICATION NO. 796 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE S.H.VORA
===========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
KAUSHIKBHAI RAVJIBHAI PATEL & 4....Opponent(s)/Respondent(s)
================================================================
Appearance:
MR HARDIK SONI APP for the Appellant(s) No. 1
MR BS PATEL, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 5
==========================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE S.H.VORA
Page 1 of 19
R/CR.A/1774/2006 JUDGMENT
Date : 10/12/06/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Both these appeals are heard together as Criminal Appeal No.1774 of 2006 is preferred under Section 377 of the Code of Criminal Procedure, 1973 (in short, the 'Code') by the State of Gujarat against the order of sentence passed by the learned Presiding Officer and Fast Track Judge (Fast Track Court No.6), Bharuch on 31.08.2005 in Sessions Case No.112 of 2004 and Criminal Appeal No.1893 of 2005 is preferred by the appellants/convicts/original accused under Section 374 of the Code with a prayer to quash and set aside conviction and sentence so imposed.
2. Details about conviction and sentence are as under:-
2.1. The present respondents-original accused were charged and tried by the learned Presiding Officer and Fast Track Judge (Fast Track Court No.6), Bharuch for the offences punishable under Sections 143, 147, 148, 149, 504, 506(2) and 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act, wherein at the end of the trial, the learned Presiding Officer and Fast Track Judge (Fast Track Court No.6), Bharuch vide judgment and order dated 31.08.2005 was pleased to convict the present accused for the offence punishable under Section 143 of the Indian Penal Code and to pay a fine of Rs.1000/- each, in default, sentenced them to undergo S.I. for fifteen days and for the offence punishable under Section 147 of the Indian Penal Code and to sentence them to undergo R.I. for one year and also to pay a fine of Rs.500/- each, in default, Page 2 of 19 R/CR.A/1774/2006 JUDGMENT sentenced them to undergo further S.I. for seven days, for the offence punishable under Section 148 of the Indian Penal Code and to sentence them to undergo R.I. for one year and to pay a fine of Rs.500/- each, in default, sentenced them to undergo further S.I. for seven days. The learned Judge was pleased to convict the present accused for the offence punishable under Section 504 of the Indian Penal Code and to sentence them to undergo R.I. for one year and to pay a fine of Rs.500/- each, in default, sentenced them to undergo further S.I. for seven days and for the offence punishable under Section 506(2) of the Indian Penal Code and to sentence them to undergo R.I. for one year and also to pay a fine of Rs.500/- each, in default, sentenced them to undergo further S.I. for seven days. The learned Judge was pleased to convict accused No.1 Kaushikbhai Ravjibhai Patel and accused No.3 Rajendra @ Rajubhai Shivabhai Patel for the offence punishable under Section 304(Part-I) of the Indian Penal Code and to sentence them to undergo R.I. for five years and also to pay a fine of Rs.2000/- each, in default, sentenced them to undergo further S.I. for one month. The learned Judge was further pleased to convict accused No.2-Narendrabhai @ Bharatbhai Chimanbhai Patel and accused No.4-Viralbhai Rajubhai Patel for the offence punishable under Section 304(Part-I) of the Indian Penal Code and to sentence them to undergo R.I. for three years and also to pay a fine of Rs.2000/- each, in default, sentenced them to undergo further S.I. for one month. The learned Judge ordered that all the sentences should run concurrently and also ordered to set off the time for which, the accused kept in custody. However, the learned Judge was pleased to acquit all the accused for the offence punishable under Section 135 of the Bombay Police Act.Page 3 of 19
R/CR.A/1774/2006 JUDGMENT
3. That, as per the case of the prosecution in brief, on 21.04.2004, around 10:00 a.m., at village - Uber, complainant-
Madhuben was with her husband at her residence and thereafter, her husband-Kantibhai, now deceased, was proceeding to offer prayer in 'Radha Krishna' Temple and while Kantibhai was on his way nearby house of Shivabhai Patel, assailants, who had assembled with deadly weapons in their hands, assaulted Kantibhai and accused No.3-Rajubhai Shivabhai Patel and accused No.1-Kaushikbhai Ravjibhai Patel had scythe while accused No.2-Bharatbhai Chimanbhai Patel, accused No.4-Viralbhai Rajubhai Patel and accused No.5 - Jagdishbhai Somabhai Patel had sticks in their hands and inflicted blow of scythe and sticks. Meanwhile, persons from neighbourhood gathered and injured-Kantibhai was taken to the Community Health Center, Jambusar and was treated primarily but looking to the nature of injuries, the injured was advised to be shifted to SSG Hospital, Vadodara. As per the complainant, cause of incident was that the son of complainant had contracted civil marriage with the daughter of the accused No.3 and she was threatened earlier by the accused persons. The complaint dated 21.04.2004 - Exh.26 lodged at 11:30 am. with Vedach police station and recorded by the Police Sub- Inspector, Vedach, Camp at Jambusar Government Hospital i.e. Community Health Center at Jambusar.
3.1. Injured - Kantibhai succumbed to the injuries and died at S.S.G. Hospital Vadodara around 14:00 p.m. on 21.04.2004.
3.2. On completion of investigation and filing of charge-sheet and committal of the case to the Sessions Court under Section Page 4 of 19 R/CR.A/1774/2006 JUDGMENT 209 of the Code, it was numbered as Sessions Case No.112 of 2004 and tried accordingly and upon appreciation of evidence, oral as well as documentary, the learned trial Judge convicted and sentenced the accused as recorded in earlier paragraph. The said oral and documentary evidence are as under:-
PG.NO. PWs/EXHs. PARTICULARS
13 Exh.5 Charge
15 Exh.6 Further statement
55 Exh.14 Scene of Offence - Panchnama
59 Exh.16 Inquest Panchnama
63 Exh.18 Joint Panchnama of Arrest and Recovery of
weapon by
1. Rajendrabhai@ Rajubhai Shivabhai
2. Kaushikbhai Ravjibhai
3. Narendrabhai @ Bharatbhai Chimanbhai
69 Exh.21 Joint Panchnama of Arrest and Recovery of
weapon by Jagdishbhai Somabhai
81 PW.9 Madhuben Kantibhai Patel-Complainant
(wife of Deceased-Eyewitness)
87 Exh.26 Complaint by Madhuben
89 PW.10 Kiritbhai Desaibhai Patel
93 PW.11 Niruben Kiritbhai (Eyewitness)
98 PW.12 Chimanbhai Bhikhabhai Patel (Eyewitness)
105 PW.14 Dr.Krishnakant Kantilal Shah
(Medical Officer)
108 Exh.33 MLC Certificate
111 Exh.35 Extracts of station diary
112 PW.16 Dr.Bijaysinh Ganpatsinhji Rathod
(Medical Officer-conducted postmortem)
115 Exh.37 P.M. Report - Injuries on Pg.118
123 Exh.38 Certificate of cause of Death
128 PW.17 Investigating Officer
159 Exh.62 Further Statement of Accused Nos.1 to 4
161 Death certificate of Jadaben
163 Further statement of accused No.5 -
Jagdishbhai
197 Exh.72 Judgment
4. The postmortem report-Exh.37, carried out by the Tutor, Page 5 of 19 R/CR.A/1774/2006 JUDGMENT Department of Forensic Medicine, Medical College and S.S.G. Hospital, Vadodara dated 21.04.2004, reveals 12 injuries in Column No.17 and further, condition of heart, as shown in Column No.20, reveals that heart was enlarged with narrowing of levelled of all on dry arteries. The description of injuries are as under:-
"(1) CLW of size 1.5 X 1 cm. on Rt. forearm lower 1/3 horizontal 2 cm. above wrist jt, bone deep.
(2) CLW of size 2.5 X 1 cm. on Rt. thumb lat. aspect, Poximal phalano, vertical bone deep (3) Rail Road contusion of size 6 X 2.5 cm. on Rt.
forearm upper 1/3 laterally oblique red (4) Rail road contusion of size 4 X 2.5 cm. on Rt. forearm lower 1/3 red, laterally, oblique alongwith fracture Rt. radius ulna (5) Rail road contusion of size 5 X 2.5 cm. on Rt. thigh lower 1/3 horizontal 5 cm. above knee jt, antelaterally red (6) contusion of size 6 X 5 cm. on Rt. let antry upper 1/3 irreg. alongwith abrasion of size 1X1 cm. in centre alongwith fracture Rt. tibia fibula upper 1/3 red (7) contusion of size 7X4 on Rt. leg, lower 1/3, anteromedially irreg. alongwith fracture Rt. tibia fibula, lower 1/3, red (8) Rail road contusion of size 7 X 2.5 cm. on Lt. shoulder top, oblique red (9) Rail road contusion of size 10 X 2.5 cm. on Lt. arm middle 1/3 laterally, oblique red (10) contusion of size 7X1 cm. on Lt. leg, upper 1/3, entry irregular red, alongwith abrasion of size 2X1 cm. in centre, irregular red (11) CLW of size 3 X 0.5 cm. on Lt. leg. middle 1/3, entry, laterally bone deep vertical alongwith swrrownding contusion of size 3.0 cm. diameter red Page 6 of 19 R/CR.A/1774/2006 JUDGMENT (12) two CLW of size 1.5 X 1 cm. and 1 X 1 cm. each, 2 cm. aspect and parallel on Lt. forearm lower 1/3 laterally, oblique soul deep.
"Cause of death was kept pending till HP exam and report comes."
Later on, HP certificate - Exh.38 dated 30.07.2004 revealed cause of death as "after report of HP Exam and report dated 24.07.2004, shock and hemorrhage following multiple fractures following trauma associated along with pathology in heart."
5. That, Dr.Krishnakant Kantilal Shah-PW.14, Exh.31, who initially treated injured-Kantibhai at Community Health Center, Jambusar, described six injuries and later on, when the injured was shifted to S.S.G. Hospital, Vadodara, initially treated by one Dr.Nishaben Sheth and autopsy carried out by Dr.Bijaysinh Rathod-P.W.No.16, almost reveals the same nature and pattern of injuries, though Dr.Krishnakant Kantilal Shah - PW.14 mentioned about six injuries as per MLC Certificate dated 04.06.2004 but, by and large, various injuries are clubbed together.
5.1. Thus, cause of death is attributed to multiple fractures and heart ailment and the injured succumbed to injuries.
6. Mr.Bharat Patel, learned counsel for the appellants in Criminal Appeal No.1893 of 2005, challenging conviction and sentence awarded by the learned trial Judge, would assail that the learned trial Judge failed to appreciate the evidence in proper perspective to the extent it was surfaced on record, meaning thereby, no eye-witness, who was examined, was present at the scene of offence and version is believable. By highlighting the testimonies of Madhuben - complainant and wife of the deceased - P.W.No.9, Chimanbhai Bhikhabhai Patel Page 7 of 19 R/CR.A/1774/2006 JUDGMENT
- P.W.12, Niruben Kiritbhai - sister of the complainant - P.W.11 and Investigating Officer - P.W.17, in juxtaposition to medical evidence and testimonies of P.W.Nos.14 and 16, two Medical Officers of Community Health Center, Jambusar and S.S.G. Hospital, Vadodara, would contend that conclusion reached by the learned trial Judge by ascribing 12 injuries including multiple fractures as the cause of death, is not borne out from the record and even the presence of the appellants is doubtful at the scene of offence. It is also contended that possibility of injuries on injured/deceased by other means, namely, bricks etc. other than usage of alleged weapons i.e. scythe and sticks was not ruled out by expert and version of the complainant and wife of deceased and Chimanbhai Bhikhabhia Patel i.e. P.W.9 and P.W.12 respectively. Even if an attempt is made to reconcile to support the case of the prosecution, guilt of the accused is not established, much less, proved. Other discrepancies, improvements, omissions and contradictions are highlighted by learned counsel Mr.Bharat Patel which include the presence of Chimanbhai Bhikhabhai Patel-P.W.12 at the scene of offence, unnatural and unbelievable conduct of the P.Ws.No.12 in approaching Madhuben-wife of the deceased instead of intervening or making an attempt to rescue Kantibhai, who was assaulted by the assailants in absence of any person at the scene of offence, so stated by Madhuben in her complaint. No doubt, according to the learned counsel for the defence, in testimonies, complainant - Madhuben-P.W.9, deposed to the extent that her husband - Kantibhai had proceeded for temple along with Chimanbhai and one Shanabhai. According to the learned counsel for the defence, the above version is nothing but an improvement particularly when, P.W.17-Jaswantsinh Madhavsinh Rathod, while Page 8 of 19 R/CR.A/1774/2006 JUDGMENT investigating the offence, could not bring any material about presence of Chimanbhai or other person. Learned counsel Mr.Patel has also contended about not examining any independent witness from gathering, who witnessed the incident, though statements were recorded and as deposed later on by the Investigating Officer that statements of such persons were not supporting the case of the prosecution. It is also contended that no attempts were made to carry out investigation impartially and in fair manner and in absence of any scientific evidence, namely, bloodstains, clothes of injured, collecting earth from the scene of offence or any such material, the case of the prosecution is based on no scientific evidence. It is further contended that Dr.Nishaben Sheth, who treated the injured at S.S.G. Hospital, Vadodara was not summoned as witness, much less, examined. When doubt is created about trustworthiness and credibility of the witnesses, benefit of doubt is to be given to the accused.
6.1. Learned advocate Mr.Bharat Patel appearing for the defence would contend that considering the nature of offence surfaced on record, in case if the Court is not inclined to accept his submissions, seeking acquittal of the accused, benefit of Section 360 of the Code to release the convicts on probation be considered.
6.2. Inter alia, it is submitted that findings and reasonings by the learned trial Judge in awarding the conviction and sentence are based on accepting theory of prosecution produced on record and, therefore, the conviction and sentence so ordered by the trial Court deserves to be quashed and set aside.
7. Mr.Hardik Soni, learned A.P.P. strenuously urged that Page 9 of 19 R/CR.A/1774/2006 JUDGMENT minor discrepancies, omissions or contradictions, if any, in oral evidence, not making a dent in the case of prosecution, namely, substratum of the charge against the accused is not eroded. Such discrepancies, omissions, improvements and even minor contradictions are to be ignored when the version of Madhuben-complainant and wife of the deceased remained almost unshaken in her testimonies. That, the above witness P.W.9 has almost confirmed the nature of incident, place of incident, role of assailants, weapons of assault used by the assailants and apprehension and threat perception for which, the complainant and her husband had approached the law enforcing agency and the Court for which, the communications addressed remained exhibited. In continuation of the above, it is submitted that the complainant meticulously described A-3 and A-1 with scythe in their hands and other accused with sticks in their hands. If injuries reflected in postmortem report and even in MLC certificate are seen, such injuries are possible and as deposed by the Medical Officers, the cause of death is multiple fractures and heart ailment and if such injuries are inflicted upon a person suffering from heart ailment, in ordinary course, would result into death and injury Nos.6 and 7 were grievous and if proper medical treatment is not given in time, it may result into death. It is submitted by learned A.P.P. that two Medical Officers, namely, P.W.14, who treated the injured initially at the Community Health Center at Jambusar, another Medical Officer, who carried out autopsy at S.S.G. Hospital, Vadodara are the witnesses and deposed before the trial Court. Non-examination of Dr.Nishaben Sheth, who treated injured at S.S.G. Hospital, Vadodara would not be fatal for the prosecution by drawing any adverse inference. According to the learned A.P.P., even solitary eye-witness, who Page 10 of 19 R/CR.A/1774/2006 JUDGMENT inspires confidence and testimonies of such witness is free from doubt, namely, vital omissions or major contradictions or both, which is to be believed in the facts of this case. Not only eye-witnesses but the medical evidence get corroboration in this case, version of witnesses get corroboration from the medical evidence and, therefore, the conclusion of the learned trial Judge based on just and proper reasoning deserves no interference by this Court and conviction and sentence so ordered need to be sustained.
8. The learned A.P.P. had also taken this Court through the exhibits, namely, complaints made before the authority and the learned J.M.F.C. about threats administered to the complainant and her husband on two different occasions and thereafter, within a few days, the husband of the complainant was assaulted which reveal the motive since the daughter of the accused No.3 contracted civil marriage with the son of the deceased against wish of her father and time and again, the family of the complainant was threatened with dire consequences including threat to their lives.
8.1. All the above submissions made by the learned A.P.P. are also pressed into service for enhancement of sentence on the ground that no case was made out by the defence before the trial Judge for awarding lesser sentence when all the assailants with clear motive and intention, assaulted the husband of the complainant and awarding of sentence only for five years R.I. and fine of Rs.2000/- and, in default thereof, one month S.I. upon accused Nos.1 and 3 and 3 years R.I. and fine of Rs.2000/- and, in default thereof, one month S.I. qua the accused Nos.2, 4 and 5, is insufficient and inadequate and Page 11 of 19 R/CR.A/1774/2006 JUDGMENT prayer made in appeal preferred under Section 377 of the Code be granted and sentence be enhanced to the maximum as provided under the statute book.
9. Following are the factors and considerations weighing with this Court for not accepting the plea of the learned A.P.P. for enhancement of sentence, namely, (i) usage of weapon i.e. scythe by which, injuries were caused and admittedly, not the sharp edge but blunt part of scythe was used. (ii) the assailants had no previous knowledge about heart ailment of injured but later on, the injured succumbed to injuries and, therefore, such knowledge cannot be attributed to the assailants that the injuries of ordinary or simple in nature would also result into death of a person in ordinary course and
(iii) MLC certificate and depositions of Dr.Krishnakant Kantilal Shah-PW.14 and Dr.Bijaysinh Rathod-P.W.16, if considered, would conjointly reveal no such injuries which would result into death immediately. That, vital blows of scythe and stick were, by and large, on hands and legs resulting into multiple fractures and cause of death is attributed to both, namely, multiple fractures and heart ailment of the deceased which he was suffering previous to assault.
10. In the case of Kulesh Mondal v. State of West Bengal reported in AIR 2007 Supreme Court 3228, in the backdrop of sudden fight when the deceased was passer-by who came to enquire about fight between accused persons and informant party and finding him there, accused dragged him to place of occurrence and his brother delivered solitary blow on his neck with a weapon to which deceased succumbed. While seeking benefit of exception 4 to Section Page 12 of 19 R/CR.A/1774/2006 JUDGMENT 300, whether accused had not taken undue advantage nor acted in cruel manner, the Apex Court had an occasion to consider an aspect about discrepancy and effect of material discrepancies and normal discrepancies upon the outcome of the case and in para 9, relying upon the earlier decision in the case of State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and other decision in the case of Lehna v. State of Haryana (2002 (3) SCC 76) which followed it, the Apex Court held as under:
"9. To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002(3) SCC 76). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186)."
11. In the case of Vithal Pundalik Zendge v. State of Maharastra reported in AIR 2009 Supreme Court 1110, the testimony of a single witness and requirement of corroboration whether necessary, the Apex Court considered the fact when the appellant and other accused allegedly assaulted deceased with sharp edged weapon and the evidence of complainant, sister of deceased, under the circumstances, who witnessed the incident and stood by her Page 13 of 19 R/CR.A/1774/2006 JUDGMENT version before the trial Court was accepted by considering initial decision of the Apex Court in the case of Vadivelu Thenvar v. The State of Madras (AIR 1957 SC 614) in para 8, which yet was followed later on by number of decisions to which a reference is made in para 9 and 10 of Vadivelu (supra) and it was held that when a solitary eyewitness if wholly reliable in spite of incisive cross examination, a few contradictions of very minor nature have been elicited which would ultimately not benefit the accused. The Apex Court in para 8 held as under:
"8. In Vadivelu Thevar v. The State of Madras (AIR 1957 SC 614) this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. The relevant portion is quoted as under :
'11.... Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely : (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to Page 14 of 19 R/CR.A/1774/2006 JUDGMENT insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.'"
12. In the case of Munshi Prasad and others v. State of Bihar reported in AIR 2001 Supreme Court 3031, the Apex Court in depth considered dilemma of witness in trial and while appreciation of evidence of the witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the Court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial Court upon appreciation of evidence forms opinion about the credibility of such witness in normal circumstances and it is not open as such for the Appellate Court to review it once again without justifiable reasons and further after considering decision in the case of State of U.P. v. M.K. Anthony (1985) 1 SCC 505 and followed in later decision in the case of Leela Ram v. State of Haryana (1999) 9 SCC 525 by which para 24 was quoted which reads as under:
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in the jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."Page 15 of 19
R/CR.A/1774/2006 JUDGMENT
13. Thus, the law on appreciation of evidence of solitary witness who otherwise is found trustworthy and testimony of such witness inspired confidence, the Court can only rely on such witness and discrepancies, improvement, contradiction if any of minor in nature and not touching the core of the case of the prosecution can safely be discarded. "
14. Thus, the decisions of the Hon'ble Apex Court relied on would reveal importance of solitary eye-witness even if such eye-witness is the relative of the injured or deceased and in the context of law laid down, as above, by the Hon'ble Apex Court, if testimonies of Madhuben-P.W.9 is considered vis-a-vis findings and reasonings assigned by the trial Court for convicting and sentencing the accused, it is clear that P.W.9- Madhuben - complainant and wife of the deceased has initially disclosed not only the place and time of the incident but also the names of the accused persons, who were assaulting her husband which scythe and sticks and further, all the assailants were from the same locality and village and known to Madhuben-P.W.9 and again, in her testimonies, bearing a reference to Chimanbhai Bhikhabhai Patel-P.W.12, who informed her about the incident, all other statements made by her earlier including complaint stand fortified in her testimonies. Simply because she happens to be the wife of the deceased and some discrepancies appear about the scene of offence either at her own, upon hearing shouts or upon information given by Chimanbhai Bhikhabhai Patel-P.W.12, would not be that relevant or a kind of vital lacunae in her evidence touching to the core of prosecution case which otherwise also, get fully supported from the nature of injuries described in MLC certificate and depositions of both the Page 16 of 19 R/CR.A/1774/2006 JUDGMENT doctors. So far as the arguments advanced by learned counsel Shri Bharat Patel for the defence about distance of residence of the complainant and her deceased husband and the scene of offence, panchnama of scene of offence and depositions of panchas reveal that even distance of 'Radha Krishna' Temple from the residence of the complainant is 200 steps and the incident had happened in between near the house of Ramanbhai, which was not far away, though stated by Madhuben, of a distance of 2000 steps and certainly, it was the statement made by her contrary to that on record. In addition to the above exhibited documents, namely, Exh.53 and Exh.56 i.e. the complaint before the P.S.I. of Jambusar police station and also before the learned Executive Magistrate, Jambusar made by the complainant in the month of March, 2004, a month before the incident, would reveal that the complainant and her family were consistently being administered threats to their lives and in furtherance thereof and in continuation, an incident had taken place in which those persons, who were named in the complaint, were the assailants and were identified by the complainant in the Court. That, the next contention of learned counsel Mr.Bharat Patel for the defence about the possibility of injuries by hitting bricks in juxtaposition to the depositions of the Medical Officers that some of the injuries would be possible but, on careful perusal of injury Nos.1,2,11 and 12, which were CLWs and bone deep, rule out the possibility that the injuries could have been inflicted by hitting bricks. Besides, one of the causes of death, as discussed earlier, is because of multiple fractures on hands and legs with radius ulna and tibia fibula. Besides, if testimonies of Dr.Krishnakant Kantilal Shah - P.W.14 is seen in cross-examination, it was deposed that injured - Kantibhai, Page 17 of 19 R/CR.A/1774/2006 JUDGMENT before administering treatment, had given history of injuries but, no record appears about any such history in MLC certificate except description of injuries and, therefore, rightly, not believed by the learned trial Judge that no documentary evidence can appear and only orally, it is so deposed upon a suggestion made by learned counsel for the defence.
15. Thus, collectively, even while re-appreciating the evidence, oral as well as documentary as a whole, we have no different view than that of the learned trial Judge for conviction and order of sentence warranting interference in exercise of appellate powers under Section 374(2) of the Code.
16. That, submission of learned advocate Mr.Patel for the defence seeking benefit of Section 360 of the Code to release the convicts on probation or after admonition, in view of the nature of sentence awarded, if considered, in the backdrop of proved incident, it is revealed that a retired teacher, aged about 60 years, whose son has contracted civil marriage with the daughter of the accused No.3, was threatened with dire consequences from time to time and was inflicted various injuries by forming unlawful assembly and for which, we are not inclined to consider the case of the convicts under Section 360 of the Code.
17. Accordingly, both the appeals are hereby dismissed. Order of conviction and sentence passed by the learned Presiding Officer and Fast Track Judge (Fast Track Court No.6), Bharuch on 31.08.2005 in Sessions Case No.112 of 2004 is not interfered with. Consequently, Criminal Revision Application No.796 of 2005 is also dismissed.
Page 18 of 19R/CR.A/1774/2006 JUDGMENT
18. As it is reported that the convicts are on bail pending appeals, their bail bond stands cancelled and the convicts are directed to surrender on or before 31.07.2015 before the jail authority to serve the remaining sentence.
(ANANT S.DAVE, J.) (S.H.VORA, J.) Hitesh Page 19 of 19