Gujarat High Court
State Of Gujarat vs Kiritsinh @ Raju Bhagwandas & ... on 4 December, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/6/1995 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 6 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to No
see 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 or
any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
KIRITSINH @ RAJU BHAGWANDAS & 1....Opponent(s)/Respondent(s)
================================================================
Appearance:
MS JIRGA D JHAVERI, ADDL.PUBLIC PROSECUTOR for Appellant(s) No. 1
MR HARESH N JOSHI FOR THAKKAR AND PAHWA ADVOCATES for
Opponents/Respondents No. 1 - 2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 04 /12/2017
CAV JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. The challenge in this appeal under Section378 of the Code of Criminal Procedure, 1973 ("the Code", for Page 1 of 30 HC-NIC Page 1 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT short), is to the judgment and order dated 03.09.1994, passed by the learned Sessions Judge, Vadodara, in Sessions Case No.138/1993, whereby both the respondentsoriginal accused have been acquitted of the charge under Sections302, 504 and 114 of the Indian Penal Code, 1860 ("the IPC", for short).
2. The case of the prosecution, in brief, is as follows:
2.1 The complainant, Dushyantsinh Joravarsinh and Virendrasinh Ranjitsinh Thakor (the deceased), had gone to celebrate Holi. While playing Holi, they reached near Jeevanbharati cross roads at about 3:30 p.m. As the elder brother of respondent No.2, Mahendra alias Raja Bhagwandas Chauhan, owed the deceased some money, the latter started demanding the amount from respondent No.2. At that, Respondent No.2 and his brother Kirit alias Raju Bhagwandas Chauhan (respondent No.1), both started abusing the deceased.
The deceased told them not to do so, at which they got agitated. Respondent No.1 caught hold of the deceased and respondent No.2 took out a "Rampuri" knife from his pocket and inflicted a knife injury on the left Page 2 of 30 HC-NIC Page 2 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT side of the stomach of the deceased. At that time, the first informant, Dushyantsinh Joravarsinh, Pankajkumar Vadilal (PW5) and Nilesh Chaturbhai (PW4) tried to intervene. The deceased was bleeding profusely from his stomach and fell to the ground. Both the respondents fled away. The first informant, Dushyantsinh, along with Pankajkumar (PW5), took the deceased to S.S.G. Hospital in a rickshaw. PW4, Nilesh Patel, went to the house of the deceased to inform his mother. When the complaint was lodged, the victim was alive. As he died later, the offence under Section302 IPC came to be added.
2.2 On the basis of the information received by the Police, an FIR (Exhibit26) was registered. Before his death the dying declaration of the deceased was got recorded by an Executive Magistrate. Samples of mud were collected from the scene of offence, statements of witnesses were recorded and the Inquest Panchnama was prepared. As per the case of the prosecution, both the respondents were already present at the Police Station to lodge a complaint when they were taken into custody. As sufficient evidence was gathered against the respondents during investigation, a chargesheet Page 3 of 30 HC-NIC Page 3 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT was filed in the Court of the learned Judicial Magistrate, First Class. The case being Sessions triable, it was committed by the learned Magistrate, to the Court of Sessions. The charge under Sections 302, 504 and 114 IPC was framed against the respondents who denied their guilt and claimed to be tried. Accordingly, the case was put to trial.
3. In support of its case, the prosecution examined as many as ten witnesses and led voluminous documentary evidence. The defence produced documentary evidence in the shape of the complaint registered by respondent accused No.1 against the deceased on the day of the incident, being C.R.No.I11/1990. No defence witnesses were examined. After the evidence of the prosecution was over, the statements of the respondents were recorded under Section313 of the Code. In their separate additional statements, the respondents have stated that they have been framed and a false case has been foisted upon them. According to their explanation, on 11.03.1990, at 3:30 p.m., the deceased, along with his friend Sikandar and other persons, came to their house and started damaging the furniture and causing a Page 4 of 30 HC-NIC Page 4 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT ruckus. They, therefore, went to the Police Station to register a complaint regarding this incident between 3:30 to 3:45 p.m., on the day of the incident. The Police Inspector was not available at the time so they were made to sit at the Police Station. When the Police Inspector came, they took him to their home, from there he went to the house of the deceased in Kirtikunj Society to investigate regarding the incident involving the deceased. As the Police Inspector, Shri Prajapati, had received certain information, he told the respondents to go to the Police Station. When they were at the Police Station, they were arrested there, at night. It is the case of the respondents that they were at the Police Station from 3:30 p.m. onwards on the day of the incident. They, therefore, have not committed any offence, as alleged and have been falsely implicated. It is further stated that their elder brother, Vijay, does not stay with them and has been living separately for the past two years. They have produced the complaint registered by them against the deceased.
4. After appreciating the oral and documentary evidence, the learned Sessions Judge acquitted the Page 5 of 30 HC-NIC Page 5 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT respondents by giving them the benefit of doubt.
5. In the above background, Ms.Jirga D. Jhaveri, learned Additional Public Prosecutor has made the following submissions:
5.1 That the first informant, Pankajkumar Vadilal (PW5) and Nilesh Chaturbhai Patel are three eye witnesses to the incident. Though PW5 has not supported the case of the prosecution, however, the ocular evidence of the other two witnesses is supported by the medical evidence. The Postmortem Report and the evidence of the doctor support the testimonies of these two eyewitnesses. 5.2 That the Discovery Panchnama of the knife indicates that the weapon was shown by the respondents. The Panch witness has also supported the case of the prosecution. Moreover, the deposition of the Investigating Officer, Mr.Manilal Galjibhai Damor, who took over the investigation, also supports the case of the prosecution.
5.3 That the Serological Report indicates there were bloodstains on the knife. As such, the case of the prosecution is supported by scientific evidence as Page 6 of 30 HC-NIC Page 6 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT well.
5.4 That minor omissions and contradictions regarding the time of the incident may not be considered when there is a clear eyewitness account of the incident. 5.5 That the reasons recorded by the Trial Court, to the effect that bloodstains on the knife could not have remained after nine days of the incident, especially when it was dug out from the mud, are not proper. No suggestion was put by the defence counsel regarding the mud. That the Serological Report mentions the presence of human blood of AB group. The case of the prosecution in this regard ought to have been believed.
5.6 That the learned Judge has clearly erred in relying upon the evidence of the hostile witness Pankajkumar while disbelieving the evidence of the two eyewitnesses, the first informant and Nilesh Patel.
As the Court below has committed a grave error in acquitting the accused, the judgment under challenge may be quashed and set aside and the appeal allowed.
6. On the other hand, Mr.Haresh N. Joshi, learned Page 7 of 30 HC-NIC Page 7 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT advocate for Thakkar and Pahwa Advocates appearing for both the respondents, has submitted that there are serious doubts regarding the timing of the incident. The medical papers reveal that the injured was brought to the hospital at 2:25 p.m. He was already at the hospital at 3:00 p.m., which is noted on the Treatment Chart. There is no reason to disbelieve the medical papers, therefore, the story of the prosecution that the incident took place at 3:30 p.m. near the Jeevanbharati cross roads, is highly doubtful and unbelievable.
6.1 That the deposition of Dr.Babulal Kalusing Patidar (PW1), the Medical Officer at S.S.G. Hospital, Vadodara, reveals that he has deposed on the basis of the medical case papers. The injured was at the hospital at 2:30 p.m. on the day of the incident and the treatment began immediately. The first entry has been recorded at 3:00 p.m., which clearly indicates that the incident must have occurred at about 2:00 p.m. 6.2 That the evidence of the first informant cannot Page 8 of 30 HC-NIC Page 8 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT be believed, as he is related to the deceased. The other eyewitness is the friend of the deceased. There is every reason to believe that they are both gotup witnesses who never witnessed the incident. 6.3 That, as per the case of the prosecution, the deceased was near Jeevanbharati cross roads. However, it has come in the evidence of the first informant that there is a distance of seven to eight hundred feet between the place where the first informant was standing and the place of the incident. There is a bend on the road and this aspect has also been deposed by him. Under the circumstances, it is highly unlikely that the first informant could have witnessed the incident, as alleged.
6.4 That no blood was found from the sample of mud collected from the place of incident. This aspect has been rightly recorded by the Trial Court. The FSL Report also corroborates this piece of evidence. That the version given by the first informant is highly contradictory. The timing of the incident goes to the root of the matter.
6.5 That the oral dying declaration stated to have Page 9 of 30 HC-NIC Page 9 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT been made by the deceased to his mother, Niranjanaben (PW6), also cannot be believed. This witness states that she went to the place of incident at 4:00 p.m. However, the medical papers show that the deceased was being operated upon at that time. This version is improbable and not worthy of credence. Hence, the oral dying declaration does not have much evidentiary value; nor can it be looked into in order to implicate the respondents.
6.6 That the eyewitness Pankajkumar (PW5) has not supported the case of the prosecution. He states that when he reached the place of incident, he saw the deceased lying there in an unconscious condition. He has not supported the version of the other two eye witnesses that the deceased demanded money from the respondents or that respondent No.1 caught hold of the deceased and respondent No.2 stabbed him with a knife in the stomach.
6.7 That even though the area was thickly populated and the incident occurred in broad day light and several people must be on the streets due to the festival of Holi, no independent witnesses have been Page 10 of 30 HC-NIC Page 10 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT examined. The entire case of the prosecution rests upon highly doubtful and contradictory evidence. Cumulatively, the prosecution has failed to discharge the onus resting upon them to prove their case beyond any reasonable doubt. Hence, the learned Sessions Judge has rightly granted the respondents the benefit of doubt by acquitting them.
6.8 That the first informant has not given the names of the assailants to the doctor at the time of recording the medical history.
6.9 That the present is an appeal against acquittal. It is a settled position of law that when two views are possible on the basis of the evidence on record, the view favourable to the accused ought to be maintained.
7. In the background of the above submissions, we may now take a brief look at the relevant oral and documentary evidence.
8. Dr.Babulal Kalusing Patidar, the Medical Officer at S.S.G. Hospital who gave primary treatment to the deceased has been examined as PW1. He states that the Page 11 of 30 HC-NIC Page 11 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT patient was brought to him on 11.03.1990, without Police reference. The patient had a stab wound on the left side of his abdomen admeasuring 2.5 x 1 c.m., which had penetrated his stomach. A portion of the small intestine was protruding out of the stomach. When he was brought to the hospital, the patient was conscious but his blood pressure was low. He was immediately given treatment and referred to the Operation Theatre to undergo an operation. However, he died after the operation. This witness states that the entire chronology of the treatment given to the patient has been noted in the case papers (Exhibit
21). He states that the injury in the stomach of the deceased could have been caused by a sharp weapon such as a knife. The doctor states that after he referred the patient to the Operation Theatre, he does not know what his condition was.
9. PW2, Dr.Uday Ramchandra Purandare, conducted the Postmortem on the body of the deceased on 12.03.1990. He has noted three injuries on the body of the deceased, out of which injury No.1 was the stab injury on his stomach which has been described by PW1. Page 12 of 30 HC-NIC Page 12 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT Injuries Nos.2 and 3 are operative wounds resulting from the operation undergone by the deceased. This witness also states that the injury received by the deceased could possibly have been inflicted with the muddamal knife shown to him. As per the testimony of this witness, injury No.1 was of such a nature that excessive bleeding from the body would have been caused. He states that if a person is standing when he receives such an injury, blood ought to have been found at the place where he was standing. This witness further states that in spite of injury No.1, a person having the build of the deceased could have run five hundred to six hundred feet.
10. PW3, Dushyantsinh, is the first informant and the cousin brother of the deceased. He is stated to be one of the eyewitnesses to the incident. He has described the incident by stating that on that day they started playing Holi from 11:00 a.m. While playing Holi, they reached Daji Brahmbhatt Chhatralaya near Jeevanbharati cross roads at about 3:30 p.m. and were standing there.
According to this witness, the deceased was also standing there when they reached. Thereafter, the Page 13 of 30 HC-NIC Page 13 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT respondents came there and the deceased demanded money owed by their elder brother from respondent No.2. The respondents started abusing the deceased. When he told them not to do so respondent No.1 caught hold of the deceased from behind. Respondent No.2 took out a knife from his pocket and stabbed the deceased on the left side of his stomach. This witness states that he and other persons tried to intervene, but the respondents ran away towards the Arya Kanya Vidyalaya. He states that he and PW5 Pankaj took the deceased in a rickshaw to the hospital and PW4, Nilesh, went to inform the family of the deceased. While they were at the hospital, PW4 arrived at the hospital with the mother of the deceased. The Police Inspector, Shri Prajapati, came there and the first informant gave the complaint which was recorded as per his say and upon which he signed. He states that he recognizes the respondents, as they are residents of Karelibaug locality. He identified the muddamal "Rampuri" knife with which respondent No.2 stabbed the deceased.
11. In crossexamination, this witness states that there is a distance of about seven to eight hundred feet between Jeevanbharati cross roads and Brahmbhatt Page 14 of 30 HC-NIC Page 14 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT Chhatralaya. There is a curve on the road. He further states that a person standing at Raju Pan Parlour would not be able to see the door of Brahmbhatt Chhatralaya. This witness further states that as soon as they reached the hospital the deceased was sent for an operation within fortyfive minutes. Regarding the motive, this witness states that the elder brother of the respondents, Vijay, owed money to the deceased towards taxi fare, which was demanded by the deceased. However, he does not have any personal knowledge regarding it. He denies that he was not present at the spot when the incident happened or that he is deposing falsely to implicate the respondents.
12. The second eyewitness is PW4, Nilesh Chaturbhai Patel, who had gone to inform the mother of the deceased after the incident. He states that on the day of the incident they reached Karelibaug cross roads at about 3:00 p.m. and stayed there for one hour. When they reached Brahmbhatt Chhatralaya, they found the deceased there. There was an altercation between the respondents and the deceased regarding money owed by the elder brother of the respondents to the deceased. Page 15 of 30 HC-NIC Page 15 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT The deceased demanded the money from the respondents, who started abusing him. The deceased told them not to do so. Respondent No.2 got excited and took out the "Rampuri" knife from his pocket and stabbed the deceased in the left side of the stomach, while respondent No.1 held the deceased. When this witness and others tried to intervene, the respondents ran away towards Arya Kanya Vidyalaya.
13. PW4 states in crossexamination that they reached the hospital at about 4:00 p.m. He denies that the deceased was conscious till the time his statement was recorded. He then voluntarily states that the deceased was a little conscious. He denies the suggestion that when the Police took his statement, the deceased was not conscious. He denies that he stated before the Police that when they reached Jeevanbharati cross roads they played Holi there for an hour and from there reached Daji Brahmbhatt Chhatralaya while playing Holi. He states that on the day of the incident he did not see the deceased near Jeevanbharati cross roads before the incident.
14. From the evidence of PWs3 and 4 some doubt Page 16 of 30 HC-NIC Page 16 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT arises regarding the actual place of the incident and whether the deceased and the respondents were present there when the eyewitnesses arrived, or not.
15. The third eyewitness, Pankajkumar Vadilal Parikh, has been examined as PW5. He has not supported the case of the prosecution and has been declared hostile. As per the testimony of this witness, on the day of the incident, he was at Jeevanbharati cross roads with his friends, namely, Nilesh Patel (PW4), Dushyantsinh (PW3) the first informant, Subhashbhai (not examined), Kaushikbhai (not examined) and others. They were all playing Holi. While doing so they went towards Daji Brahmbhatt Chhatralaya. There they noticed a crowd and saw the deceased, Virendrasinh, lying there. The small intestine of the deceased was protruding from the left side of his stomach. He was lying there, injured. This witness, Nileshbhai and Dushyantsinh took the deceased to the hospital for treatment but he does not remember what treatment was give at the hospital. He denies the entire story of the prosecution that respondent No.1 caught hold of the deceased while respondent No.2 took Page 17 of 30 HC-NIC Page 17 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT out the "Rampuri" knife from his pocket and stabbed the deceased on the left side of his stomach. He states that he does not know whether Nileshbhai had gone to the house of the deceased to inform the family of the deceased or not. He denies the statement given by him to the Police, in toto. He further states that when he saw the deceased lying on the ground it was already 3:45 p.m. In crossexamination, this witness states that he was in the hospital with the deceased till he was taken to the Operation Theatre. The deceased was unconscious during treatment. He states that the mother and sister of the deceased arrived at the hospital when the deceased was in the Operation Theatre. He states that his statement was taken by the Police at 4:30 p.m. in the hospital.
16. Niranjanaben Ranjitsinh Thakor, the mother of the deceased, has been examined as PW6. She states that about fifteen days prior to the incident, Vijay (brother of the respondents) had taken the vehicle of the deceased on hire and owed the deceased Rs.200/ towards the fare. On the day of the incident, at about 4:00 p.m., Nileshbhai came to her house and informed her that the deceased had fought with the respondents Page 18 of 30 HC-NIC Page 18 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT and had been taken to the hospital. She immediately went to the hospital with Nileshbhai. As per this witness when she reached the hospital, her son was under treatment and was a little unconscious. When she asked him what had happened, the deceased is stated to have informed her that respondent No.2 had stabbed him with a knife and both the respondents were together. As her son could not speak much, she did not inquire further.
17. The case of the prosecution is supported by PW7, Rakeshbhai Hasmukhbhai Patel, the Panch witness of the Discovery Panchnama. As per the testimony of this witness, he was called as a Panch witness by the Police on 20.03.1990. Respondent No.2 was present there. According to him, respondent No.2 showed his willingness to discover the knife. A preliminary Panchnama was prepared on which the Panch witness has signed and thereafter they went in the Jeep, accompanied by respondent No.2, the other Panch witness and the Police personnel, to Arya Kanya Vidyalala, as per the directions of respondent No.2. There was a ditch near Vijay Sadan, where respondent Page 19 of 30 HC-NIC Page 19 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT No.2 told them to stop the jeep. He got out of the Jeep and went into the dirty ditch while the rest of the party were standing above the ditch. Respondent No.2 went near the bushes and started digging. He took out a knife with a brass handle, on which there was a blood stain. This knife was wrapped in a paper by the Police and sealed. This witness identified the muddamal knife as being the one dug out from the ditch near the bushes by respondent No.2. From the cross examination of this witness, it transpires that he is a resident of the residential society adjoining the one where the deceased lived. He denies that he was a friend of the deceased or that he had framed the respondents. This witness further discloses, in cross examination, that the place from where the knife was discovered was an open one. There was a road and constant coming and going of people. He denies the suggestion that respondent No.2 did not give them any relevant information regarding the discovery of the knife.
18. PW8, Rugnath Yadav Marathe, is the Police Sub Inspector, who made the entry regarding the incident Page 20 of 30 HC-NIC Page 20 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT in the Station House Diary. The first Investigating Officer, Shankarlal Tribhovandas Prajapati has been examined as PW9. He states that the day of the incident was the festival of Holi. He was on patrol duty during the Bandobast from the morning. Between 4:15 to 4:30 p.m., he received information and went to the Government Hospital. There he found the deceased was unconscious. He recorded the complaint of the first informant, sent it to the Police Station and informed the concerned Police personnel on wireless, regarding the incident. He sent the complaint with a 'Yadi' to the Police Station for the registration of the FIR. When the patient regained a little consciousness, he sent a requisition to the Executive Magistrate for recording of the dying declaration. He states that the Medical Officer made an endorsement upon the 'Yadi' in his presence to the effect that the patient was conscious. Thereafter, he went to the place of the incident, near Daji Brahmbhatt Chhatralaya. He took samples of the bloodstained mud and the control samples of mud in different packets and sealed them. He again visited the hospital where he took the statements of Pankajbhai and Nileshbhai. Page 21 of 30 HC-NIC Page 21 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT During this time, the patient died. He, therefore, prepared the Inquest form and had the Inquest Panchnama drawn. He made a report for the addition of the charge under Section302 of IPC and reached the Police Station at 22:30 hours. There he found both the respondents present, whom he arrested after drawing the Arrest Panchnama. This witness further states that on the next day, the clothes on the body of the deceased were taken into custody, after preparing the Panchnama at Exhibit13. He took the statements of concerned persons. However, he states that respondent No.2 was not available. Thereafter, he went on leave and when he returned the investigation was handed over to PW10, Manilal Galjibhai Damor, the second Investigating Officer. It appears from the statement of this witness that he recorded the statements of several independent persons such as shopkeepers and others near the place of the incident but did not append any of these statements with the chargesheet. This witness admits, in crossexamination, that the complaint against the deceased, his friend Sikandar and other persons was given by the respondents at the Karelibaug Police Station on the day of the incident Page 22 of 30 HC-NIC Page 22 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT at 3:30 p.m., regarding the incident of housebreaking and causing damage to property. However, he states that he does not remember whether he was informed by the Police Station Officer of Karelibaug Police Station regarding the said complaint or not.
19. PW10, Manilal Galjibhai Damor, the Investigating Officer, prepared the Discovery Panchnama and described the procedure followed by him. He states that after his arrest, respondent No.2 showed his willingness to disclose the place where the weapon of offence was hidden. He, therefore, went with the Panch witnesses and the said respondent to the place near Vijay Sadan. The vehicle was stopped at the behest of respondent No.2, who went into the dirty ditch and took out the bloodstained knife. He denies that respondent No.2 did not show his willingness to discover the knife or that he did not take out the knife from the ditch.
20. In the Postmortem Report at Exhibit24, the cause of death is stated to be "shock due to haemorrhage due to rupture of inferior Vena Cava with rupture of small intestine due to stab injury over the abdomen". The Page 23 of 30 HC-NIC Page 23 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT Serological Report indicates that human blood of AB group was found on the knife. However, there is no material on record to indicate that the blood group of the deceased was determined. It, therefore, is not clear whose blood was found on the knife.
21. On the basis of the above material on record, the Trial Court arrived at the conclusion that the death of the deceased was homicidal in nature. The Trial Court also came to the conclusion that the prosecution had failed to prove beyond any reasonable doubt, that the respondents were guilty of the offence of murder of the deceased.
22. The Trial Court has recorded detailed reasons in support of its findings. After consideration of the said reasons in support of the above conclusion, we cannot but agree with the ultimate decision arrived at by the Trial Court.
23. On an independent scrutiny of the evidence on record, certain aspects emerge for consideration, which are discussed hereinbelow.
24. The first informant is admittedly the cousin Page 24 of 30 HC-NIC Page 24 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT brother of the deceased. The second eyewitness, Nilesh Patel, was also known to the deceased and can be said to be an interested witness. Though the aspect of relationship cannot be a factor to discard the testimony of these witnesses in toto, however, it is equally true that the evidence of a related or interested witness is required to be scrutinized closely and cautiously. Upon doing so, we find several contradictions in their testimonies. The first informant stated that there was a distance of about seven to eight hundred feet between the place where he was standing (Jeevanbharati cross roads) and the place where the incident took place (Daji Brahmbhatt Chhatralaya). He also states that there was a bend in the road. His testimony makes it difficult to believe that he has actually witnessed the incident from such a distance.
25. It is the case of the prosecution that the incident had taken place at about 3:30 p.m. near Jeevanbharati cross roads. However, the medical papers suggest otherwise. According to the entry in the case papers at Exhibit21, the deceased was in the hospital Page 25 of 30 HC-NIC Page 25 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT at 2:30 p.m. PW1, Dr.Babulal Kalusing Patidar, has deposed on the basis of the medical case papers that the treatment of the deceased started immediately thereafter. Hence, it is difficult to believe that the incident happened at 3:30 p.m. The deceased was already in hospital much before that. No explanation has been offered by the prosecution for this glaring contradiction. There is every possibility that the timing has been changed with a view to show that there was no delay in lodging the FIR. Another possibility could be that the incident did not happen in the manner stated by the first informant and PW4, Nilesh Patel.
26. There appears to be a material contradiction regarding the place of incident itself. As per the FIR at Exhibit26, the incident took place near Jeevanbharati cross roads. However, the first informant has deposed that the incident took place near Daji Brahmbhatt Boarding. He has further stated that there is a distance of seven to eight hundred feet between these two places. Even as per the Panchnama of the Scene of Offence, the incident took Page 26 of 30 HC-NIC Page 26 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT place at Daji Brahmbhatt Chhatralaya. Blood has been collected from this place. This improvement is indicative of the possibility that the first informant is not an eyewitness to the incident, but has been projected as such and the place of incident involving the respondents has been deliberately changed.
27. The prosecution has remained silent about the complaint lodged by the respondents against the deceased and his friend Sikandar and others, at 3:30 p.m. on the very day of the incident. An explanation has been given by the respondents in their statements under Section313 of the Code, that they were present at the Police Station from 3:30 p.m. onwards on the day of the incident in order to get their complaint recorded. The Police Inspector was not present as he had got information regarding the incident and had gone away. When he returned they were taken into custody at the Police Station and falsely implicated in this incident. The complaint made by the respondents has been placed on record by the defence and is at Exhibit
34. No explanation, whatsoever, is given by the prosecution in this regard. On the contrary, PW9, the Page 27 of 30 HC-NIC Page 27 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT first Investigating Officer, Shri Prajapati, has feigned ignorance regarding the complaint. This raises doubt and suspicion, which has not been dispelled by the prosecution.
28. The third eyewitness, Pankajbhai Vadilal Parikh has turned hostile. It is a settled position of law that the portion of the testimony of a hostile witness that supports the case of either the prosecution or the defence can be taken into consideration. This has been done by the Trial Court, which has found that the story of this witness regarding his narration that on the day of the incident when he reached Daji Brahmbhatt Chhatralaya while playing Holi, he found the deceased lying there in an unconscious condition, much more believable than the story of the first informant, which is riddled with contradictions. In our view, no legal error has been committed by the Trial Court in relying upon the testimony of this witness to that extent, though he has turned hostile.
29. It has come in evidence that the area where the incident took place is a thickly populated one with several shops and houses. On the day of the incident, Page 28 of 30 HC-NIC Page 28 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT it was the festival of Holi and several people would have been out on the road playing Holi. The Investigating officer (PW9) has stated that he took the statements of several witnesses and shopkeepers but did not append them to the chargesheet. It is open to the prosecution to choose the witnesses it wants to examine before a Court of law, but the fact that statements of the independent witnesses were taken but they were not called to depose before the Court, indicates that those independent witnesses must not have supported the case of the prosecution.
30. We have examined the medical papers, which are on record at Exhibit21. If the first informant was actually an eyewitness of the incident, he would definitely have revealed the names of the respondents whom he claimed to have seen committing the crime, while recording the medical history. However, the respondents have not been named in the medical case papers.
31. The socalled oral dying declaration purported to have been given by the deceased to his mother, Page 29 of 30 HC-NIC Page 29 of 30 Created On Mon Dec 04 23:15:21 IST 2017 R/CR.A/6/1995 CAV JUDGMENT Niranjanaben, is also not beyond the realm of doubt. Niranjanaben arrived at the hospital at about 4:00 p.m., as per her own statement. By that time, the deceased was already in the Operation Theatre. Under the circumstances, not much credence can be given to this oral dying declaration.
32. Taking into consideration the above glaring aspects and contradictions cumulatively, we find ourselves in full agreement with the conclusion arrived at by the Trial Court that the prosecution has failed to prove the guilt of the respondents beyond reasonable doubt. The impugned judgment of the Trial Court does not suffer from any legal infirmity so as to warrant interfere.
33. The appeal, therefore, fails and is dismissed.
34. Bail bonds, if any, stand cancelled. The R & P be sent back to the concerned Trial Court.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) Gaurav+ Page 30 of 30 HC-NIC Page 30 of 30 Created On Mon Dec 04 23:15:21 IST 2017