Gujarat High Court
Shaileshbhai Kalubhai Mundvada & 6 vs State Of ... on 16 December, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/352/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 352 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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SHAILESHBHAI KALUBHAI MUNDVADA & 6....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Appellant(s) No. 1 - 7
MS JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 16/12/2014
CAV JUDGMENT
The appellants are convicted by impugned judgment and order dated 26th February, 2013 for two years rigorous imprisonment with fine of Rs.500/-, and in default, to undergo simple imprisonment of two days Page 1 of 14 R/CR.A/352/2013 CAV JUDGMENT under Section 147 of the IPC with further rigorous imprisonment of three years with fine of Rs.500/-, and in default, to undergo simple imprisonment of two days under Section 148 of the IPC and with ten years rigorous imprisonment under Section 307 of IPC with fine of Rs.5,000/-, and in default, to undergo simple imprisonment of six months. All such offences are to be run concurrently and the period of custody during the trial is to be given set off. Whereas they are acquitted under Sections 504 and 506 (2) of the IPC as well as for the offence under Section 135 of the Bombay Police Act.
2. The 9th Additional Sessions Court of Panchmahal, Godhara has also directed to pay Rs.30,500/- as compensation out of the amount of fine that may be deposited by the accused to the injured victim Champabhai after the appeal period is over. Since some of the accused are released on bail by suspending their sentence, probably this amount may not have been paid to the victim. However, there is no clarity on record regarding such amount as to whether it is paid to the victim or not.
3. I have considered the rival submissions of both the parties and perused the record in the form of paper-book thoroughly. On considering the rival submissions and record, it becomes clear that the impugned judgment could not sustain in its form as it is, since there is not only material contradictions in the prosecution evidence, but there is basic lacuna in the entire prosecution case, in as much as, though the charges are under Section 307 of the IPC for inflicting grievous injuries to one Champabhai Mundvada, prosecution has failed to examine such victim before the trial Court to prove his injuries and also to pinpoint/identify the person who has inflicted such injuries to him. It has come on record that even on the date of deposition of certain witnesses, said victim Page 2 of 14 R/CR.A/352/2013 CAV JUDGMENT Champabhai is unable to speak. Unfortunately, except such disclosure by two witnesses, there is no evidence to the effect that in fact victim Champabhai is unable to speak because of the injuries if any received by him in so called incident as alleged by the prosecution.
4. The Sessions Court has also failed to appreciate that non- examination of victim is vital issue for the prosecution case and even if the victim is unable to walk or unable to speak, there must be a cogent reliable evidence supported by medical evidence on the record, regarding such status of the victim.
5. Mere statement by one of the witness that victim is unable to move and speak would not be enough to ignore the position that the prosecution has not cared to prove such situation by reliable cogent evidence. Even if victim is unable to walk and speak, there are method and provision to record his evidence by appropriate mode, including his examination by Court Commissioner, supported by medical evidence that he was unable to walk and speak. Whereas, so far as inability to speak is concerned, it is obvious that, if paralysis is not 100%, then the victim must be communicating his day to day requirement by some alternative mode like signs, as it is being done by deaf and dumb persons. Even if not by proper sign, then normal sign to understand certain things. At least victim can answer the question either in affirmative or in negative by shaking his head in appropriate mode, and can certainly identify the accused and weapons which is alleged to be used in the incident by showing finger towards it. Therefore, if no attempt is made by the prosecution to prove the incident through the victim, then it would certainly go against the prosecution case and benefit of doubt must be extended to the accused.
6. It is also clear and obvious that even if victim is unable to move or Page 3 of 14 R/CR.A/352/2013 CAV JUDGMENT speak, that evidence must be brought on record by the expert i.e. doctor, who has examined the witness at the relevant time after the incident or even by his fresh examination at the time of recording of evidence before the trial Court. When no such attempt was made and when victim is not examined at all, it is difficult to believe the evidence of other witnesses , which is explained hereinafter, is nothing, but hearsay evidence.
7. The prosecution story is to the effect that on the date of incident i.e. 27th June 2011, all the accused had come with sword, Dhariya, axe, stick, etc. and attacked the victim and his family by such deadly weapons as well as by throwing stone and shouting that why they are not allowing them to cultivate the land of their uncle Ramjibhai Surjibhai Mundvada. The dispute is pertaining to the land of said Ramjibhai, who is close relative of both the sides, but since he adopted one Salubhai Ramjibhai Mundvada, and thereby, though accused are family members of the Ramjibhai Surjibhai Mundvada, his land has been cultivated by said Salubhai Ramjibhai Mundvada, who is the complainant herein.
8. In his complaint Salubhai Ramjibhai Mundvada has alleged that all the accused have come to their house and accused no.1 has injured Champabhai by sword. Whereas, his wife Ramilaben has been injured by Dhariya by accused no.4, and when she shouted, other people have gathered, and thereupon, the accused have run away with the weapons. Thereafter, as usual, the story is to the effect that victim was taken to the hospital in unconscious condition and he has filed complaint, which is registered at Santrampur Police Station as I-CR no.65 of 2011.
9. The list of evidence and its description is very well described in the impugned judgment and, therefore, I do not wish to reproduce it.
Page 4 of 14 R/CR.A/352/2013 CAV JUDGMENT10. With this background, if we peruse the evidence on record, it transpires that there is not only material contradiction, but practically none of the witnesses have personal knowledge about the incident, except wife of the complainant who has been injured to some extent, as per her say and as disclosed in the complaint. But surprisingly, except the victim
- Chamanbhai, none of the witnesses have taken any treatment anywhere and, therefore, the statement about their personal injury is not supported by any cogent, reliable and corroborating or supporting evidence in any manner. Therefore, it certainly gives a doubt that probably they are not injured at all. Whereas as stated herein above, the only injured victim has not been examined at all.
11. PW-1 Sanabhai Mundvada at Exh.23 simply confirms the panchnama of the place of incident, but he also confirms that panchnama was written by police and simply asked him to sign and, therefore, he signed it. Thereby, though panchnama does not confirm the commission of offence by accused as alleged, and since it only confirms the place of incident with collection of stone with blood could not be considered as a sufficient evidence to prove that incident has happened as alleged and that victim was injured to such an extent by accused no.1 by his sword.
12. PW-2 Salubhai Ramjibhai at Exh.27 is complainant. Though he is categorically stating the name of each accused with specific weapons and with specific attack on particular victim, surprisingly, in cross- examination, he has admitted that when stone throwing was started immediately he ran away from the place of incident and that the victim was collecting the stone in his Wada. Thus, there is contradiction regarding place of incident also i.e. whether it has happened at the house of the complainant or the victim or in their Wada. He has admitted that Page 5 of 14 R/CR.A/352/2013 CAV JUDGMENT there was a dispute regarding land of deceased Ramjibhai. He also admits that, in fact, complaint was disclosed to the police by the neighbourers, who have gathered at the police station, and he has simply put his thumb impression on the complaint. He also admits that he has not disclosed in his complaint about injuries by Parvat Vagha and Lalabhai to the victim, which is alleged in his examination-in-chief. Thereby, he is adding the name of accused with deadly weapons in his examination-in-chief and making contradictory statement in his examination-in-chief and cross- examination. He has also disclosed that victim Champabhai was unable to speak and walk, but such fact is thereafter not proved by any cogent evidence. Therefore, if we peruse the evidence of the complainant with the complaint, it is clear that as admitted by the complainant itself, it is a pre-planned complaint because of land dispute between the two groups.
13. PW-3 - Ramila is wife of the complainant. She also admits that there is a dispute of land between the families, but in her cross- examination she has admitted that accused Parvat Vagha, Prakash Damor and Jitendra Damor are residing at another Village Bhansimal, whereas accused Bharatbhai Pargi, who is brother-in-law of accused no.1 Shailesh Mundvada is residing at Rajasthan. Therefore, there is no possibility of their presence at the time of alleged incident, though, it is not impossible, but more particularly, when there are several contradictions in the deposition of all the witnesses. However, the most important admission by her is to the effect that police has simply asked their name and had written down their statement on their own, and that on the date of recording evidence, their advocate has read over the statement to her and, therefore, she has deposed according to such statement. Even though thereafter she has admitted that they are residing in Vadli Faliya, whereas incident has taken place at Padlawala Field of the victim i.e. at Page 6 of 14 R/CR.A/352/2013 CAV JUDGMENT some different place thereby presence of the complainant and his wife at the place of incident is questionable.
14. There is reason to say so, because in cross-examination, she has stated that she has not taken any treatment. Neither in her cross- examination she has admitted that neither she and her husband were injured nor taken any treatment or gone to the dispensary, whereas though other witnesses have denied the suggestion that accused has filed a complaint against the victim before two days, this witness has categorically admitted that, yes, accused have filed a complaint against victim Champabhai before two days. This may be another cause for filing a cross complaint. She has also admitted that she has not stated several things in her statement before the police, which she has stated in her deposition i.e. in her examination-in-chief while alleging that accused Prakash Damor and Jitendra Damor have beaten her with Axe. For place of incident also she has admitted that their house is at the distance from the field where incident has taken place and she was also admitted that after the incident, accused are not residing in the village and disputed fields.
15. PW-4 Kantaben Dilipbhai Mundvada at Exh.32 seems to be unreliable witness. She has admitted that the house of the complainant is at the distance from her house and incident has taken place on the backside of the complainant's house. She claims that she has seen all the accused with weapons attacking the victim-complainant and his wife. She also alleged that there was stone throwing on her house also and since she has small child, she has hidden herself with child in her own house, which is at the distance on other side of the place of incident. Thus, it would be difficult for her to witness the incident as alleged in the Page 7 of 14 R/CR.A/352/2013 CAV JUDGMENT complaint and, therefore, if she is saying that she is deposing in confirmation with the complaint then certainly she is a chance witness. She has also added the name of the accused with weapons in deposition, though there was no such disclosure in her statement before the police. She has admitted that though she was present at the place of incident, after the incident, when police was inquiring about the incident, her first statement was not recorded. Thereby, it confirms that investigating agency has recorded the statement of the witnesses in one go, in confirmation of victim.
16. Upendrakumar Bihariprasad Verma, who is Doctor of Civil Hospital and who has examined the victim and issued injury certificate, which is at Exh.35. The witnesses have confirmed that there is multiple fracture of anterior parietal bone. However, the witnesses has to admit that such injury can be possible if person falls on hard and blunt substance and it is nowhere suggested by the witness that such injury was caused because of the sword. It is clear and obvious that if there was blow of sword or sharp cutting weapon, then there would be sizable wound with fracture, but the victim has only CLW with fracture and, thereafter, there is admission by the doctor that such injury is possible if someone falls on hard and blunt substance i.e. stone. With such admission, when it is not disclosed that injury was inflicted by the sword, it is difficult to believe that such injury was inflicted by sword by accused No.1.
17. PW-6 Jamnaben Mundvada at Exh.36, who is wife of the victim, has categorically admitted that she was not present at the place of incident, but she has reached there after the incident. Even though she is stating about role of each accused with reference to deadly weapon and, therefore, it becomes clear and certain that she is not telling the truth Page 8 of 14 R/CR.A/352/2013 CAV JUDGMENT before the Court, when there is clear admission by her that when she was approaching to the place of incident, accused have thrown stone and, therefore, she could not reach at the place. This witness has also deposed that her husband, the main victim is unable to speak, even on the date of such deposition i.e. 13th August, 2012. However, as discussed herein above, they have never bothered to prove such fact by reliable cogent evidence.
18. PW-7 Dilipbhai Champabhai Mundvada, Exh.41 is also family member of the complainant and he was at his home, which is not the place of incident. In any case, it is his admission that when victim who was his father, was collecting stone from his field, one Govind had come and when victim has asked the accused that why they were beating Govind, accused no.1 has given sword blow to his father. Whereas, accused Bharat Vagha has given blow by Dhariya and accused Lalabhai Kalubhai has given axe blow. Whereas Bharat has beaten his father by stick. Therefore, this witness is talking about three blow by deadly weapon. As against that, the medical evidence is confirming only one serious blow. This witness has also stated that his father is bedridden and unable to walk. As against the disclosure by his mother as well as wife of the complainant that victim is unable to speak. Therefore, there is contradiction so far as the status of victim is concerned. This may be the reason that why prosecution has not dared to come forward with specific positive evidence regarding status of the victim that whether he is unable to move and bedridden or he is unable to speak. Whereas, this witness has to admit that while recording his statement, police has read-over the complaint to him. He also admits that some of the accused are residing at the distance of 200 steps from his house and that they all are family members. However, for some unknown reasons, he did not admit that Page 9 of 14 R/CR.A/352/2013 CAV JUDGMENT there was a dispute between them regarding land of Ramjibhai, though all other witnesses have admitted such position. During cross-examination, he also admits that at the relevant time, he was taking tea in his house, whereas incident has taken place in his agricultural field and though he does not admit, it is proved on record that he has also added the name of accused Bharat Vagha and Lalabhai Kalubhai with Dhariya and axe respectively in his deposition, though it was not disclosed earlier.
19. PW-8 Govindbhai Ramjibhai Mundwara is brother of the complainant and thereby family member of both the parties. He has not seen the incident since he was on roof of his house and though other witnesses have stated that incident has taken place in the field of victim, this witness says that incident has taken place at his house where the accused has come and quarelled with the victim and injured him. Therefore, practically, this witness is saying altogether a different story than the complaint and though son of the victim is not admitting the dispute, this witness admits the dispute of land between them. Fortunately, though he has stated that incident has taken place at his home, in cross-examination, he admits that incident has taken place in the field of victim Champabhai. Therefore, it is clear and certain that he is also a chance witness and his deposition cannot be relied upon to confirm the conviction.
20. PW-9 - Dr.Lalitkumar Arya at Exh.46 is Doctor of Santrampur Hospital, who has examined the witness on 28.6.2011 and he proves injury certificate at Exh.47. Though he has categorically stated that injuries to the victim are possible by sword, Dhariya and axe, he has to admit that there is no history about who has assaulted the victim and injury nos.1 and 2 cannot be by a sharp cutting instrument. Therefore, Page 10 of 14 R/CR.A/352/2013 CAV JUDGMENT there is a material contradiction in the deposition of Doctor of Civil Hospital, Godhra at Exh.34 being PW-5 and this witness being Doctor of Santrampur Hospital, so far as nature and cause of injuries are concerned.
21. One another Doctor is examined as PW-10 at Exh.51, namely, Dr.Pritesh S.Shah, who was serving at S.S.G Hospital, Vadodara since victim was taken to that hospital for further treatment as he was unconscious at the relevant time. Now, altogether a different story has come on record, which is stated by previous Doctors i.e. the victim has wound with stitches and that too near his left eye and not on head. Though the Doctor confirms that there was a fracture of frunto parietal bone, he also does not confirm that victim is unable to move, walk or speak. He proves his injury certificate at Exh.52 wherein all four injuries were defined as simple injuries. However, this Doctor has also admitted in his cross-examination like the first Doctor at Exh.34 that injuries of the victim can be possible, if someone falls at a hard and blunt substance and except fracture, all other injuries were simple. Therefore, there is material contradiction in medical evidence also and hence it seems that probably, victim has fallen on a stone, which he was collecting in his field and received some grievious injuries, which is attributed to the accused because of complaint by them and because of dispute between the group regarding agricultural lands.
22. One more material contradiction is in the form of possession of the instruments - weapons, which are alleged to be used to injure the victim, in asmuch as though panch witness and panchnama categorically confirms that the sword recovered was recently cleaned and there was no blood stain or any other stain on it, the I.O has deposed that sword recovered was having blood stain on it, which was sent to FSL for Page 11 of 14 R/CR.A/352/2013 CAV JUDGMENT examination and even FSL report states that sword was having stain of blood on it. This creates serious doubt about the investigation because when PW-11 Gautambhai Lalabhai Bhamat, though proves the panchnama and muddamal articles at Exhs.55 to 59 and though he was one of the pancha in such panchnama wherein it is categorically stated that sword was recently cleaned and had no bloodstain, surprisingly, I.O and FSL report states that sword was having bloodstain on it. If this panch witness is telling the truth when he says that he has simply signed the panchnama prepared by the police then absence of bloodstain was recorded by the I.O. in the panchnama. Therefore, when he is supporting the prosecution and proves the panchnama, even if he says that panchnama was prepared by the police is more against the case of the prosecution to confirm that story of the complainant is probably got-up and concocted with the help of the prosecution.
23. PW-12 Lalsinh Chandubhai Barjod is investigating officer. So far as his examination-in-chief is concerned, he has narrated the history of investigation and produced and proved the FSL report, which is practically against the panchnama, as discussed herein above, whereas in cross-examination, he has no option but to admit the additions and contradictions by the witnesses. It would not be necessary to reproduce all such lines in verbatim since it is very well there in the evidence.
24. Therefore, minute scrutiny of evidence as aforesaid, makes it clear that the prosecution case is neither trustworthy and the evidence is not reliable. Therefore, conviction cannot be confirmed. The minute reading of evidence in corroboration with each other, makes it clear that all the witnesses have deposed in stereotype manner against all the accused, but while doing so, they have contradicted with each other with reference to Page 12 of 14 R/CR.A/352/2013 CAV JUDGMENT the place of incident, weapon used by the particular accused and the injury sustained by victim and other witnesses. It cannot be ignored that except the victim, none of the witnesses have, though they claim that they have received injuries, got them examined by the Doctor, even though some of them had been there to the hospital.
25. Surprisingly, the trial Court has added certain things, which is not in evidence i.e. victim is living idle as a live dead-body and witnesses have to serve him and observe that if at all victim would have died, then, accused would have been charged with the allegation of murder, and if it is proved they would have been convicted for committing murder. For the quantum of sentence, the trial Court has considered that the injury were on vital part and intentional, whereas the discussion herein above makes it clear that practically, there is no reliable cogent evidence without reasonable doubt and in corroboration with other evidence to confirm that it was only accused no.1 coupled with other accused, who have given such serious blow by such deadly weapon to the victim. At the cost of repetition, it cannot be ignored that prosecution has not examined the victim and even failed to prove his physical condition either through Doctor or even by appointing commissioner for the purpose.
26. Though the impugned judgment is in detail, describing all the facts of investigation and trial and reproducing relevant observation from the evidence before the Court, but it does not give any confidence to confirm the conviction and, therefore, there is no option, but to interfere with the order of conviction. The settled legal position is clear that conviction can be confirmed only and only if there is reliable cogent evidence to confirm that particular injury to the victim is nothing but the result of particular act of particular accused. Otherwise, benefit of doubt is to be extended to Page 13 of 14 R/CR.A/352/2013 CAV JUDGMENT the accused. In the present case, prosecution has clearly failed to prove such thing, and therefore, there is no option, but to extend the benefit of doubt in favour of the accused.
27. Appellants are relying upon the judgment between Babu Singh & Ors. Vs. State of Haryana reported in 1995 Cri.L.J.2630 submitting that if at all Court is not convinced about the innocence of the accused, then, atleast the conviction is required to be reduced u/s.324 and 34 of the IPC since there was no common intention to commit such assault and it cannot be attributed to all accused.
28. However, as discussed herein above, I am of the opinion that in fact there is lack of sufficient evidence at all to confirm the conviction and, hence, there is no question of reduction of sentence u/s.307 to Sections 324/323 of the IPC.
29. For the foregoing reasons stated above, the Criminal Appeal of the appellants is allowed by setting-aside the judgment passed in Sessions Case no.193 of 2011 by learned Addl.Sessions Judge, 9 th Addl.Sessions Court, Panchmahal at Godhra dated 26.2.2013.
30. Some of the accused are on bail, hence, their bail bond shall stand cancelled. Whereas some of the accused are in jail, hence, they should be released forthwith if not required in any other offence.
(S.G.SHAH, J.) binoy Page 14 of 14