Gujarat High Court
Abdulbhai vs The on 8 July, 2011
Author: A.L.Dave
Bench: A.L.Dave
Gujarat High Court Case Information System
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CR.A/900/2005 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 900 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE R.M.CHHAYA
=========================================================
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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ABDULBHAI
SAMRATBHAI SIPAHI & Ors. - Appellants
Versus
THE
STATE OF GUJARAT - Respondent
=========================================================
Appearance
:
MR
YOGESH S LAKHANI with MR.SAMIRKHAN
for
Appellants
MR KL PANDYA, ADDL.PUBLIC PROSECUTOR for
Respondent-State
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CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 08/07/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE R.M.CHHAYA) The present appeal arises out of the judgment and order rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 172/2004, on 9.3.2005, convicting appellant No.1 for the offences punishable under Sections 302 of the Indian Penal Code and Section 135 of the Bombay Police Act and appellant Nos.2 & 3 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code ["IPC" for short]. For committing offence punishable under Section 302 IPC, appellant No.1 has been sentenced to undergo life imprisonment and pay fine of Rs.2000/-, in default to undergo S.I for 6 months. He has also been sentenced to undergo S.I for 3 months and to pay fine of Rs. 100/-, in default S.I for 15 days, for committing the offence punishable under Section 135 of the Bombay Police Act. Appellant Nos.2 & 3 have been sentenced to undergo life imprisonment and to pay fine of Rs. 1000/-, in default to undergo S.I for one month, for committing the offence punishable under Section 302 read with section 34 IPC.
2. The prosecution case, in brief, is that on 20.6.2004 at about 7.30 A.M, when deceased Rahimbhai Mehmoodbhai had gone to answer the nature's call nearby the lake at village Lhor, Taluka : Kadi, District :
Mehsana, the appellants-accused, in collusion with each other, assaulted upon the deceased in furtherance of their common intention to cause death of the deceased, by keeping grudge against the complainant and deceased Rahimbhai, on refusal of hypothecation of their agricultural lands against the bank advance to be obtained by the appellants-accused for purchasing a tractor. It is alleged by the prosecution that appellant Nos.2 & 3 caught hold of the deceased and appellant No.1 gave knife blows in the stomach of the deceased and thereby committed his murder.
2.1 It is the case of the prosecution that complainant Ismailbhai Mehmoodbhai Sipai (PW.5, Exh.24), who happens to be the brother of the deceased, at the time of the occurrence, was at a distance of about 80 ft. from the place of the incident and on hearing the shouts raised by the deceased, he immediately rushed to the scene of offence and he found that appellant Nos.2 & 3 had caught hold the deceased and appellant No.1, who was armed with a knife, had inflicted two knife blows in the stomach and one knife blow on buttock of the deceased. It is further the case of the prosecution that the complainant raised shouts and within five minutes, persons residing nearby as well as those who had come to answer nature's call, including Bhikhabhai (PW.7), gathered at the place of the incident. It is the case of the prosecution that as the deceased was severely injured, he was immediately taken to Bhagyoday Hospital at Kadi, where-from the deceased was shifted to Kadi Referal Hospital, where the Medical Officer on duty, examined the deceased. However looking to the seriousness of the injuries, the Medical Officer opined to shift the injured (deceased) at the Ahmedabad Civil Hospital and he was shifted to Ahmedabad Civil Hospital, where he was operated. However, the deceased succumbed to the injuries at 3.30 PM on the same day, i.e. 20.6.2004.
2.2 As the place of incident falls within the jurisdiction of Bavlu Police Station, Dr.Parul, Medical Officer of Kadi Referal Hospital, (PW.6) informed Bavlu Police Station about the incident and, therefore, the police officer of Bavlu Police Station reached Ahmedabad Civil Hospital after the deceased was taken in the Operation Theater. Ultimately, after the deceased succumbed to the injuries at about 3.30 PM, Ismailbhai gave FIR to the Police Officer of Bavlu Police Station camping at Ahmedabad Civil Hospital and the same was registered as the FIR.
3. The investigating officer registered the FIR and started investigation. The I.O recorded the statements of the complainant, doctor and other persons, who were found conversant with the facts of the case. On completion of the investigation, the appellants were charge sheeted in the Court of learned J.M.F.C. Kadi, for the offences punishable under Section 302 read with Section 34 IPC and Section 135 of the Bombay Police Act. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to Sessions Court at Mehsana, for trial, where it was registered as Session Case No.172/2004.
4. The learned Judge, to whom the case was made over for trial, framed charge against the appellants at Exh.2 for the offence punishable under Section 302 read with Section 34 IPC and Section 135 of the Bombay Police Act. The charge was read over and explained to the appellants, who pleaded not guilty to the same and claimed to be tried.
5. After recording of the evidence of the prosecution witnesses was over, the learned Judge explained to the appellants the incriminating circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required by Section 313 of the Code. In their respective further statements, the case of the appellants was that they had not committed the offence and were falsely implicated in the offence.
6. After appreciating the evidence adduced by the prosecution and hearing the learned counsel for the parties, the learned Judge has convicted the appellants, as referred to above, by judgment and order dated 9.3.2005, giving rise to this appeal.
7. Heard learned Senior Advocate Mr.Y.S.Lakhani appearing with learned advocate Mr. Samirkhan for the appellants and learned A.P.P Mr.Pandya for the State, at length and in great detail.
8. Learned Senior Advocate for the appellants has invited our attention to the oral testimonies of complainant Ismailbhai (PW.5, Exh.24), FIR (Exh.25), Dr.Parulben, Medical Officer of Kadi Referal Hospital (PW.6, Exh,27), Bhikhabhai Mehmoodbhai Gori (PW.7 Exh.29) as well as Investigating Officer Mr.Gondaliya (PW.9, Exh.32). He has also taken us through the Serological Report (Exh.38) and panchnama of discovery of weapon knife as well as seizure panchnama of clothes of appellant No.1.
8.1 Learned counsel Mr.Lakhani has submitted that the prosecution has failed to prove the charges levelled against the appellants. He has submitted that, at the outset, the FIR (Exh.25) is not only doubtful, but the same cannot be recognized as FIR. Mr.Lakhani, relying upon the oral testimony of Ismailbhai Sipai, the complainant (PW.5, Exh.24), has submitted that the said witness has categorically stated that when he and other relatives reached Civil Hospital, Ahmedabad and the deceased was admitted in the Emergency Ward of the Civil Hospital, he gave a statement to the police constable, who was on duty at the Civil Hospital, and he signed the papers so prepared by the police constable on duty at the Emergency Ward of Civil Hospital, Ahmedabad. Mr.Lakhani further submitted that the FIR (Exh.25) was recorded by the police officer of Bavlu Police Station camping at Ahmedabad Civil Hospital, after the deceased expired and, therefore, the FIR (Exh.25) could not be treated as FIR. Mr.Lakhani has also pointed out that for the reasons best known to it, the prosecution did not bring on record the statement which was recorded, in fact as an FIR, by the police constable on duty at the Emergency Ward of Ahmedabad Civil Hospital. He, therefore, submitted that the very basis of the charge against the appellants-accused is doubtful and the same ought to have been treated as FIR in the eye of law.
8.2 Learned Senior Advocate Mr.Lakhani has argued that as per the case of the prosecution, two fold motive is attributed against the appellants; firstly, it is alleged that the accused wanted to purchase a tractor on loan for which they wanted the deceased to stand as a surety and as the deceased declined to be a surety, keeping grudge in mind, the appellants-accused assaulted the deceased. Secondly, it is alleged that the deceased had illicit relations with the wife of appellant No.1, who committed suicide on the same day, i.e. 20.6.2004. Mr.Lakhani asserted that the motive attributed by the prosecution is false. Mr.Lakhani submitted that as per Exhs. 40/1, 40/2, 40/3, in fact, appellant No.2 had already a tractor and by producing Passbook of the Bank Account of the appellants, the appellants have brought on record the evidence to show that there was no requirement of obtaining bank advance. Mr.Lakhani, therefore, submitted that the motive attributed by the prosecution is not only false, but never existed and the appellants have been wrongly roped in the present offence.
8.3 Mr.Lakhani pleaded that the complainant (PW.5) has been wrongly labelled as an eye witness and from his deposition, it cannot be inferred that he had actually seen the occurrence. He submitted that the prosecution case is based mainly on the oral testimony of PW.5, but the same is not believable and the same is not corroborated by any further evidence whatsoever. It was also urged by Mr.Lakhani that even though the complainant (PW.5) took the deceased in injured condition first to Bhagyoday Hospital, then to Kadi Referal Hospital and lastly to Ahmedabad Civil Hospital, no history of the occurrence of the offence has been given by the said witness. Mr.Lakhani further submitted that the prosecution has not corroborated the oral testimony of the complainant (PW.5) by any evidence, even though the same was available in the form of statements, which were recorded by I.O during the course of investigation. He submitted that the oral testimony of witness Bhikhabhai Gori (PW.7, Exh.29) reveals that the I.O had recorded statements of the persons staying nearby the scene of occurrence as well as of the persons, who had gone to answer nature's call around the lake, but the prosecution has not examined any such witness. Mr.Lakhani further submitted that similarly the prosecution has not brought on record what was stated by the complainant (PW.5) before the police constable who was on duty at the Emergency Ward of Civil Hospital and cumulatively therefore, the presence of this witness is doubtful.
8.4 Learned Senior Advocate Mr.Lakhani submitted that the deceased was not ordinary resident of village Lhor, but was staying at village Jethlaj, which is situated at a distance of about 18 Kms from village Lhor. He submitted that, however, the complainant has not stated anything as to how his deceased brother was present to answer nature's call at village Lhor and that too, at wee hours. Mr.Lakhani submitted that, therefore, the oral testimony of the so-called eye witness Ismailbhai (PW.5), who happens to be the brother of the deceased is untrustworthy and unbelievable.
8.5 Learned counsel Mr.Lakhani submitted that similarly, oral testimony of witness Bhikhabhai Gori (PW.7), who also happens to be the brother of the deceased, is also not believable. On the contrary, Mr.Lakhani pointed out that witness Bhikhabhai has clearly stated in his deposition that the deceased was not ordinary resident of village Lhor and, therefore, the presence of this witness itself is doubtful and has inherent material contradiction. He further submitted that in his deposition, witness Bhikhabhai (PW.7) has stated that he suffers from paralysis and, therefore, is not able to walk. He has further submitted that this witness has clearly stated in his deposition that his hearing capacity is also impaired. However, at the same breath, this witness has deposed that on hearing the shouts, he ran towards the scene of occurrence. Mr.Lakhani submitted that the complainant (PW.5), in his deposition, has stated that after the incident, when he raised shouts, other persons came there after about five minutes and, therefore, the oral testimony of witness Bhikhabhai (PW.7) is also untrustworthy and not believable. Mr.Lakhani stressed that in fact, the oral testimonies of PW.5 & PW.7 need to be discarded, as they are not corroborated by any independent witness, even though available.
8.6 Learned counsel Mr.Lakhani submitted that except the bare statements in the oral testimony of PW.5, there is no evidence or any corroboration, as far as the charge against appellant Nos.2 & 3 is concerned, and the prosecution has not been able to prove the charge levelled against them at all.
8.7 Mr.Lakhani further submitted that even as per the serological report, bloodstains were not found on the muddamal weapon knife as well as on the shirt of appellant No.1 and clothes of other accused. The prosecution has heavily relied upon the bloodstains found on the trouser (pent) of appellant No.1, which, according to the Serological Report, were of human blood group "A", which is the blood group of the deceased. Mr. Lakhani stressed that no conviction could have been based on such a weak piece of evidence. He submitted that the trouser of appellant No.1 was discovered at the instance of appellant No.1 from his house. However, panchas, namely, Mangalbhai Narsinhbhai Senma and Bhagaji Jivaji Thakore do not support such a discovery and, therefore, the reliance placed on such a weak piece of evidence by the prosecution does not take the case of the prosecution any further and the reliance placed by the learned Judge of the trial Court on such a weak piece of evidence is erroneous. Mr.Lakhani also submitted that the prosecution has not given any probable explanation whatsoever as to why the names of the assailants were not given, either at Kadi Referal Hospital or Ahmedabad Civil Hospital, and as can be seen from the medical certificate issued by the Medical Officer of Kadi Referal Hospital, the history given was of alleged assault. Learned counsel Mr.Lakhani submitted that as the prosecution has not been able to prove the charges levelled against the appellants, the appeal deserves to be accepted and the conviction is liable to be set aside.
9. Learned A.P.P. Mr. Pandya has opposed this appeal and supported the impugned judgment and order of conviction and sentence passed by the learned Judge of the trial Court and contended that the learned trial Judge was perfectly justified in convicting the appellants-accused looking to the evidence on record of the case. He submitted that the oral testimonies of the complainant (PW.5) as well as witness Bhikhabhai (PW.7) is trustworthy and is rightly believed by the learned trial Judge. Mr.Pandya pointed out that PW.6, Medical Officer of Kadi Referal Hospital had recorded the history of alleged assault and only because the assailants had not been named,it could not have been inferred that the oral testimonies of PW.5 & PW.7 are untrustworthy. He further submitted that the prosecution has been able to prove the guilt to its hilt, more particularly, by the Serological Report, wherein it is mentioned that the blood group of bloodstains found on the trouser of appellant No.1 was human blood group "A". Mr.Pandya also submitted that the prosecution has been able to amply corroborate the oral testimonies of eye witness Ismailbhai (PW.5) as well as witness Bhikhabhai (PW.7) and the learned trial Judge has rightly convicted the accused. Mr.Pandya submitted that the fact that the wife of appellant No.1, who had illicit relations with the deceased, committed suicide on the same day, establishes the motive as attributed by the prosecution. Learned A.P.P. Mr.Pandya, therefore, urged that the appeal is devoid of merits and, therefore, deserves to be dismissed.
10. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case.
11. It is worth to note that the prosecution has based its entire case on the oral testimonies of Ismailbhai Mehmoodbhai Sipai (PW.5) and Bhikhabhai Gori (PW.7). Upon reading the deposition of PW.5, we find that the father of the appellants wanted to purchase a tractor on advance from the Bank on the hypothecation of agricultural lands of the deceased and the complainant (PW.5) and as the said request was not acceded to, the appellants-accused assaulted on the deceased when he had gone towards Bavaji Bapa Temple near the lake to answer the nature's call. In his cross-examination, PW.5 has stated that the deceased was residing at village Jethlaj and was engaged in the occupation of driving for the past 8 to 9 years; whereas his wife and children were residing at village Lhor. He has stated in his cross-examination that he had also gone to answer nature's call at about 7.00 pm and when he was descending from the boundary of the lake, he heard the shouts of his deceased brother from a distance of about 80 ft. and he saw the appellants-accused running towards north, and when he reached the scene of occurrence, he found his brother lying in severely injured condition. He took his brother on his leap, however, his clothes were not bloodstained. He has stated that as he raised shouts, Ahmedbhai, Bhikhabhai, Najmabibi and Mehbubbhai came to the scene of offence. He has further stated that he had not disclosed the names of the assailants, but only stated that the deceased was assaulted with a knife, before the Medical Officer of Kadi Referal Hospital. In his cross-examination, he has categorically stated that when he reached the Emergency Ward of Ahmedabad Civil Hospital, the duty police constable inquired about the incident and he had given details of the occurrence. He has also stated that the police noted down what he had stated and he had signed the same. The witness has denied the suggestion put to him that there were illicit relations between the wife of appellant No.1 and the deceased. In his cross-examination, he has stated that he was not aware that the wife of appellant No.1 had committed suicide.
12. Upon reading the oral testimony of Dr.Parul Sheth, Medical Officer of Kadi Referal Hospital, we find that the deceased was taken to Kadi Referal Hospital on 20.6.2004 at 8.30 hours and as the relatives of the deceased had come without informing the police, she informed the Police Constable (Buckle No.760) of Bavlu Police Station on phone about the incident. This witness has mentioned the type of injuries noticed by her on the body of the deceased while examining him when he was brought to the Referal Hospital. In her cross-examination, she has opined that such type of injuries were possible by a sharp cutting object.
13. Upon reading the deposition of witness Bhikhabhai Gori (PW.7, Exh.29), he has stated that on the date of the incident, i.e. 20.6.2004 at about 8.00 AM, when he was going to his agricultural field in a tractor driven by Umarbhai Nathubhai, he heard the shouts which were raised from behind the house of Manubhai Barot. This witness has further stated that, in fact, he was not travelling in the tractor, but, was pushing the tractor which had break down near the house of Manubhai Barot. He has further stated that on hearing the shouts, he rushed towards the place of incident near Bavaji Bapa Temple and found the deceased lying in injured condition. This witness has stated that knife blows were inflicted to the deceased and his intestines had protruded. He has also stated that he noticed knife injury also on the back of the deceased. He has further stated that he saw the appellants-accused running away, but as he was suffering from paralysis, he could not chase them. In his cross-examination, this witness has admitted that as he was suffering from paralysis, he was incapable to run. He has further stated in his cross-examination that when he reached the place of incident, other 5 to 7 persons were present there. He has also stated that he had impaired hearing capacity and he could hear only when one speaks loudly. In his cross-examination, he has stated that when he reached near his injured brother (deceased), about 25 to 30 persons had gathered at the place of incident. This witness has further stated that he and his brother Ismail (PW.5) reached the place of occurrence together. He has admitted that on the date of incident, he had left his house at 8 O'clock in the morning. He has denied the suggestion put to him by the defence that the deceased had illicit intimacy with the wife of appellant No.1.
14. Upon perusing the oral testimony of Mr.Gandaliya, Investigating Officer (PW.9, Exh.32), he has narrated the manner in which he had carried out the investigation. He has also stated that as per the instructions from his superior, joint investigation was carried out by him for both the incidents, i.e. the present one and the incident of suicidal death of the wife of appellant No.1. In his cross-examination, the I.O has stated that when he was at village Thol, he was informed by the PSO about the incident, but he did not go to village Lhor and went to Ahmedabad. He has stated that by the time he reached village Lhor, Beat Head Constable had visited village Lhor and he carried out primary investigation. He has also stated in his cross-examination that he had recorded the statement of Ismailbhai (PW.5) in relation to the incident of suicidal death of the wife of appellant No.1. This witness had recorded the statements of Bhikhabhai (PW.7), Niruben Dantani and other persons also. He has stated that he had not recorded the statement of Manubhai Barot, who was staying near the scene of occurrence. He has denied the suggestion of the defence that even though no eye witnesses were there, wrong statements had been recorded by him in connivance with the complainant.
15. The sum total of the above discussion of the evidence, leads to the fact that as per the charge of prosecution levelled against the appellants-accused, the motive attributed to the appellants is denial by the deceased and his brother Ismailbhai (PW.5) for hypothecation of their agricultural lands to purchase a tractor by Samaratbhai, father of the appellants. It is worth to note that from the documents produced vide list Exh.40, we find that accused No.2 was holding Saving Bank Account with Dena Bank, Kadi Branch, with balance of Rs. 76,191.81 ps. We also find that a tractor bearing registration No.GJ-2B-6520 (of 1995 Model) stands in the name of appellant No.2 - Karimbhai Samarathbhai. There is no evidence except bald allegation that the deceased had illicit intimacy with the wife of appellant No.1, which, in fact, is denied by PW.5 & PW.7 themselves. Thus, the motive suggested is very weak and the prosecution has not been able to prove the motive, as alleged. Similarly, upon appreciating the evidence in the form of oral testimonies of PW.5 & PW.7, we find that there is material contradiction as regards the presence of both the witnesses at the time of occurrence. As discussed above, PW.7 has categorically stated in his oral testimony that he left his house at about 8 O'clock in the morning, whereas the alleged incident, as per the prosecution case, occurred at about 7.30 AM. The prosecution has not been able to prove the fact that PW.5, who is original complainant, had actually seen the occurrence of crime, even though, in his examination-in-chief, this witness has attributed particular role to each of the appellants-accused. The prosecution has not been able to corroborate the same by any further and independent evidence, even though the same was available. On close scrutiny of oral testimonies of Ismailbhai (PW.5) and Bhikhabhai (PW.7), we find that their versions are wholly coloured and not trustworthy. They had knowingly suppressed the truth. Their testimonies are not free from doubt. and, therefore, the same could not have been made the sole basis for conviction.
15.1 From the oral testimony of Ismailbhai Sipai (PW.5), it clearly appears that police constable on duty at the Emergency Ward of Ahmedabad Civil Hospital had recorded the statement of PW.5, which is admittedly first in time than the first information report (Exh.25). However, the prosecution has not thought it fit to bring the same on record. So, the very basis of the charge by the prosecution itself is doubtful and, therefore, in this set of circumstances, Exh.25 cannot be treated as FIR. Non-disclosure of first version given by Ismailbhai (PW.5) before the police constable on duty at Ahmedabad Civil Hospital creates doubt as regards veracity of the version given by PW.5 before the police officer of Bavlu Police Station camping at Ahmedabad Civil Hospital, as well as his oral testimony Exh.24.
16. It is true that the bloodstained trouser of appellant No.1 was discovered at the instance of appellant No.1 himself from his house. However, the prosecution has not been able to prove such a discovery and both the panchas, as referred to above, have turned hostile and have not supported the prosecution case.
17. Cumulatively, having regard to the nature of incongruities obtaining in the evidence of the so-called eye witness, this Court is of the opinion that the appellants are entitled to the benefit of reasonable doubt. After analysing, sifting and assessing the evidence on record with particular reference to its trustworthiness and truthfulness by a process of dispassionate scrutiny, this Court finds it highly unsafe to rely upon such evidence to hold the appellants guilty for the offence charged against them. The appeal, therefore, deserves acceptance.
18. The appeal is, therefore, allowed. The conviction of the appellants, namely, (1)Abdulbhai Samratbhai Sipai, (2) Karimbhai Samratbhai Sipai, and (3) Mehmoodbhai Karimbhai Sipai, recorded by the learned Additional Sessions Judge, Mehsana, by judgment and order dated 9.3.2005, in Sessions Case No.172/2004, is hereby set aside. They are acquitted of the charges levelled against them. Appellant No.1-Abdulbhai Samratbhai Sipai be set at liberty forthwith, if not required in any other case. Bail bonds of Appellant Nos.2 & 3 shall stand cancelled. Fine, if paid, shall be refunded to the appellants-accused.
[A.L.Dave,J.] [R.M.Chhaya,J.] (patel) Top