Gujarat High Court
The State Of Gujarat vs Chhatrabhai Somabhai Parmar & ... on 21 August, 2017
Author: Anant S. Dave
Bench: Anant S. Dave, R.P.Dholaria
R/CR.A/1948/2006 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1948 of 2006
Further Order in connection with the order dated 3.8.2017
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THE STATE OF GUJARAT....Appellant(s)
Versus
CHHATRABHAI SOMABHAI PARMAR & 1....Opponent(s)/Respondent(s)
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Appearance:
MR RUTVIJ OZA, APP for the Appellant(s) No. 1
MS. SHAILI A KAPADIA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
-2
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 21/08/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) Heard Mr.Arpit Kapadia, learned advocate for respondent No.1 who is personally present in the Court on the aspect of sentence upon conviction under section 304-II of IPC vide judgment dated 3.8.2017.
Mr.Kapadia, learned advocate for respondent No.1 would earnestly request to grant benefit to R-1 under the Probation of Offenders Act or under section 306 of Code of Criminal Page 1 of 2 HC-NIC Page 1 of 27 Created On Tue Aug 22 00:11:48 IST 2017 1 of 27 R/CR.A/1948/2006 ORDER Procedure 1973 to which Mr.Rutvij Oza, learned APP has objection and we are also not inclined to grant such request keeping in mind overall facts and the evidence so discussed.
Respondent No.2 has died on 25.12.2011 for which xerox copy of the death certificate issued on 4.1.2012 by the Talati-cum-Mantri of Village Panchayat, Kanotiya, Taluka Kalol, District Panchmahal is produced on record and therefore, this appeal qua R-2 stands abated and conviction recorded earlier shall not operate qua R-2.
Considering totality of the facts and the evidence surfaced against R-1, we are inclined to impose rigorous imprisonment of five years and fine of Rs.5000/- (Rupees five thousand only) and in default, to undergo further rigorous imprisonment for one month. R-1 to surrender before the jail authority within a period of ten weeks from today. Order accordingly. The appeal stands allowed to the aforesaid extent only.
(ANANT S.DAVE, J.) (R.P.DHOLARIA,J.) pathan Page 2 of 2 HC-NIC Page 2 of 27 Created On Tue Aug 22 00:11:48 IST 2017 2 of 27 R/CR.A/1948/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1948 of 2006 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE R.P.DHOLARIA ============================================= == 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 or any order made thereunder ?
============================================= == THE STATE OF GUJARAT....Appellant(s) Versus CHHATRABHAI SOMABHAI PARMAR &
1....Opponent(s)/Respondent(s) ============================================= == Appearance:
MR RUTVIZ OZA ADDL. PUBLIC PROSECUTOR for the Appellant MR ARPIT A KAPADIA and MS. SHAILI A KAPADIA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 2 ============================================= == CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 03/08/2017 Page 1 of 25 HC-NIC Page 3 of 27 Created On Tue Aug 22 00:11:48 IST 2017 3 of 27 R/CR.A/1948/2006 JUDGMENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. This appeal under Section 378 (1) (3) of Code of Criminal Procedure, 1973 is preferred against the judgement and order of acquittal dated 17.5.2006 passed by learned Additional Sessions Judge at Panchmahals at Godhra in Sessions Case No.286 of 2005 for the offences under Sections 325, 326, 302 read with Section 114 of the Indian Penal Code and under Section 135 of Bombay Police Act against the accused persons.
2. The facts of the prosecution case in nutshell are that the complainant-Zavriben got three children out of the wedlock with Accused No.1-Chhatrabhai Somabhai Parmar. All the three children were staying with Accused No.1. The complainant left three children and Accused No.1 and stayed with her lover-Dalpat Rajyajibhai since last twelve to thirteen years. On 24.10.2005, the complainant and Dalpat went to the village Kanetia of the accused person to meet her three children. Thereafter, while they were returning to Halol on 25.10.2005 at about 12:30 p.m., Accused No.1 asked her to come back to reside with him at his residence. When the complainant refused for the same, accused persons got angry and Accused No.1 assaulted her and caused serious injuries to her and when deceased-Dalpat intervened to save her, both the accused persons i.e. A-1 and A-2 who is the brother of A1 have caused serious injuries to him. As a Page 2 of 25 HC-NIC Page 4 of 27 Created On Tue Aug 22 00:11:48 IST 2017 4 of 27 R/CR.A/1948/2006 JUDGMENT result of which he has succumbed to death during the course of treatment at S.S.G. Hospital, Vadodara on 27.10.2005. F.I.R. was lodged by the complainant at Kalol Taluka Police Station for the offences punishable under Section 325, 326, 302 read with Section 114 of the Indian Penal Code.
3. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution led evidence and on the conclusion of the trial, the learned Additional Sessions Judge, Panchmahal at Godhra passed the order of acquittal against the accused.
4. Mr.Rutviz Oza, learned APP appearing for the appellant-State has vehemently contended that judgement and order of acquittal of the trial Court is based on conjunctures and surmises and evidence of eye witnesses including injured eye witnesses, medico legal and forensic is not considered at all. Not only reasons are lacking but findings arrived and conclusion are drawn about no guilt of the accused against the weight of evidence is wholly illegal and unsustainable and judgement and order of acquittal deserves to be reversed.
5. In support of his above submissions, learned APP has taken us to backdrop of the prosecution case, to which, reference is made in earlier paragraph of this judgement and no doubt initially a case was registered under Section Page 3 of 25 HC-NIC Page 5 of 27 Created On Tue Aug 22 00:11:48 IST 2017 5 of 27 R/CR.A/1948/2006 JUDGMENT 325, 326 and 114 etc. but upon death of injured Dalpat Rayajibhai, Section 302 was added. According to learned APP, the case on hand is based on evidence of complainant-Zaveriben Dalpatbhai Parmar P.W.6 who was examined at Exh. 21. She is victim and injured eye witness and not only that she received gravious injuries but one Dalpat Rayajibhai with whom she was having live-
in-relationship for about 12 years and accompanies her was also inflicted fatal blows on vital organs of body namely head and other parts, who after medical treatment succumbed to the injuries. The above P.W. has described the whole incident and a few exaggeration and improvement later on in the testimony which do not affect the core of prosecution case deserves to be ignored. By drawing our attention to the evidence of Narvatbhai Rayjibhai Parmar who was examined at P.W.13 examined at Exh.35 and brother of deceased, no doubt heard version about the incident from P.W.6 also confirms about the incident that presence of both the accused at the scene of offence is established and as per map of scene of the offence drawn it is clear that the incident took place near and opposite to the house of accused No.1. Further medico legal evidence about injuries inflicted on injured eye witness P.W.6 and the deceased are not only established from the documentary evidence but also deposed by Dr. Brijendrasingh Malkansingh P.W.17 at Exh.46 who was medical officer at Community Health Centre, Kalol and had given primary treatment to P.W.6 Page 4 of 25 HC-NIC Page 6 of 27 Created On Tue Aug 22 00:11:48 IST 2017 6 of 27 R/CR.A/1948/2006 JUDGMENT and deceased and both of them were advised for better treatment at SSG Hospital Vadodara. It is submitted that possibility of injuries by weapons of assault used by both the accused namely 'Narash' (solid iron rod having pointed nob used for agricultural purpose) and 'Vansi' again having sharp and curved iron stripe with handle of wood, normally used for weeding out scrub. Again blood stains of Group 'B' found on the articles as per FSL report confirms that blood stains at sample Nos. 1, 2, 3, 4, 5, 6, 8 and 9 where the article namely clothes put on by the deceased by the injured eye witness P.W.6 and the deceased i.e. Articles 1 to 6 and Articles 8 to 9 are the weapons namely agricultural equipments used for commission of crime having blood group 'B'. That even minor inconsistency, improvement and aggression on the part of P.W.6 deserves to be viewed in juxtaposition of testimonies of Ramsinh Fulsinh Dabhi P.W.18 Exh.52 Police Sub Inspector who was on 25.10.2005 was performing his duty at Kalol Police Station and received the information about the incident. The investigating officer, the above P.W. admits Exh.53, a complaint written as per instructions given by P.W.6 and other procedure followed about various communication in the form of yadi's received and send including that of articles/samples sent for FSL report. The above I.O. further admits to have recorded statements of P.W.7, P.W.11 and P.W.15 about version of such witnesses that P.W.6 and her paramour were attacked by A-1 and A-2 as stated in the complaint.
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By taking us to P.M.report, injuries in column 17 and 19 in all 20 such injuries which included abrasion, contusion etc. but major injuries were fatal and extra dural hemorrhage on both fronts of parietal, occipital and temporal were sufficient enough to cause death. Even we are taken to testimony of Dr.Vinayakrao Vasudevrao Patil P.M.Doctor P.W.12 confirming such injuries.
6. By placing reliance on decision in the case of Alagupandi @Alagupandian v. State of Tamil Nadu 2012 (10) SCC 451, it is submitted that evidence of solitary witness namely brother of the deceased who was present on the spot was held not doubtful particularly when such testimony was corroborated by evidence of neighbour and medical evidence and that not the number of witnesses but quality of testimony of the witness injured or otherwise if inspires confidence and trustworthy and therefore reliable can be believed.
7. By taking us to reasonings and findings and conclusions about no guilt of the accused and failure on the part of prosecution to prove its case beyond reasonable doubt and giving benefit of doubt to the respondents by acquitting them of charge under Section 302 read with Section 114 of I.P.C., it is contended that learned trial Judge has proceeded to produce convenient and piecemeal testimony of the witnesses which according to him established that such witnesses were not reliable Page 6 of 25 HC-NIC Page 8 of 27 Created On Tue Aug 22 00:11:48 IST 2017 8 of 27 R/CR.A/1948/2006 JUDGMENT therefore not to be believed. It is submitted that law of appreciating evidence namely testimony of prosecution witnesses mandate the trial Court to consider the testimony of a witness as a whole along with other evidence and to come to the conclusion. It is therefore, submitted that judgement and order of acquittal deserves to be interfered with in exercise of power under Section 378 read with Section 386 of Code of Criminal Procedure, and the respondents be convicted for the offence under Section 302 read with Section 114 of Indian Penal Code and maximum sentence be imposed accordingly.
8. Mr.Arpit Kapadia, learned advocate for the respondents however would contend that this appeal preferred by the State of Gujarat is against the judgement and order of acquittal and based on sound principles of law of appreciating evidence and learned trial Judge has found substantial and glaring discrepancies and major contradictions in the version of P.W.6, an injured eye witness, witnessing the incident of A-1 and A-2 inflicting fatal blows is also highly doubtful and unbelievable inasmuch as, according to P.W.6 she was tied by the rope with electricity pole and assaulted while Dalpat Rayajibhai deceased was also in different room and, therefore, conclusion of trial Judge about her testimony not inspiring confidence is unassailable. P.W.6 even admits that she had no knowledge about what was written in the complaint and that she was untide by the police is again Page 7 of 25 HC-NIC Page 9 of 27 Created On Tue Aug 22 00:11:48 IST 2017 9 of 27 R/CR.A/1948/2006 JUDGMENT not emerging from the testimonies of P.W.16. Likewise P.W.13 reached at a scene of offence after an hour and naturally had not witnessed anything about assault by A-1 and A-2 and P.W.17 at Exh.22 denies to have stated before police about the incident in question. It is submitted that P.W.'s 1, 2, 7, 8 and 15 have turned hostile. P.W.'s 1 and 2 are pancha witnesses of physical condition of the complainant P.W.6 while P.W.'s 7, 8 and 15 are eye witnesses. It is submitted that even medical officer namely P.W.9 who examined complainant, P.W.17 who had given primary treatment to complainant and deceased, both at C.H.C., Kalol and P.W.12 P.M.Doctor are also unable to give definite opinion about possibility of injuries resulting into death of Dalpat Rayajibhai. From version of P.W.6 and other P.W.'s it emerges on record that story put up by the prosecution and P.W.6 about P.W.6 was taken to the residence of A-1 by deceiving her to meet children borne out of wedlock. Even nothing comes on record about testimony of P.W.6 about divorce given to her husband namely P.W.1 and no evidence in this regard is produced on record. It is therefore, submitted that the trial Court assigned reasons from paragraph 17 onwards of the judgement while answering issue No.1 about involvement of A-1 and A-2 in the crime contains reasons and initially incident in question which took place on the day of election of Taluka Panchayat and number of independent persons were present and had witnessed the crime but no statement of such Page 8 of 25 HC-NIC Page 10 of 27 Created On Tue Aug 22 00:11:48 IST 2017 10 of 27 R/CR.A/1948/2006 JUDGMENT independent witness is recorded and even if it is recorded, nothing is brought on record of the trial Court. That simply because blood group 'B' is found on the cloths of P.W.6 and deceased and on the weapons as per FSL report, the same cannot be conclusive to establish that A- 1 and A-2 had any nexus with the crime, since, other pancha witnesses have turned hostile. The same is rightly not relied on and accordingly, no case is made out to interfere with the judgement and order of acquittal passed by the trial Court. Learned advocate for the respondents relied on following decisions in the case of Joseph v. State of Kerala (2003) 1 SCC 465 and Devatha Venkataswamy alias Rangaiah v. Public Prosecutor, High Court of A.P. (2003) 10 SCC 700 in support of his arguments that unless testimony of injured eye witness inspires confidence and trustworthy, simply because such witness is injured is no ground to believe case of the prosecution and in absence of any clinching evidence including that of corroboration the Appellate Court exercising powers under Section 386 of the Code of Criminal Procedure, 1973 will not substitute findings of the trial Court and when contradiction or omissions, discrepancies and improvements including inconsistency etc. deserves to be carefully gone into. It is submitted that when trial Court has given cogent reasons for acquittal in the present case to reverse the same would be unsafe and to convict the accused solely on the basis of such witness.
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8.1. Following is the oral evidence and documentary evidence:
ORAL EVIDENCES PW Name Note Exh.
No. 1 (H) Vikramsinh Narvatsinh Panch Witness admitting 6 his signature on Exh.7 Panchnama for physical condition of complainant 2 (H) Ganpatbhai Anopbhai Panch Witness admitting 10 Solanki his signature on Exh.7 Panchnama for physical condition of complainant 3 Rameshbhai Panch Witness of 11 Prabhatsinh Parmar Panchnama for place of incident 4 Prabhatsinh Panch Witness of Arrest 15 Chandrasinh Parmar Panchnama 5 Kishorbhai Ambalal Panch Witness of inquest 18 Panchnama 6 Zaveriben Dalpatbhai Complainant/injured E/w 21 Parmar 7 (H) Natvarsinh Shanabhai Eye Witness 22 Parmar 8 (H) Bharatbhai Prabatbhai Eye Witness 23 Parmar
9 Dr.Nazima Abdul Mazid Medical Officer for 25 Sheikh examination of complainant 10 Jeshingbhai Map prepared by him Map 28 Ramsingbhai Bhagora @ Exh.29 11 Fatabhai Pratapbhai Resident of village of 31 (H) Kanetiya (residing nearby the place of incident) 12 Dr.Vinayakrao P.M.Doctor 33 Vasudevrao Patil 13 Narvatbhai Rayjibhai Brother of Deceased 35 Parmar Hearsay from P.W.6 (complainant 14 Bhimsinh Ramsinh Resident of village Kanetiya 38 Page 10 of 25 HC-NIC Page 12 of 27 Created On Tue Aug 22 00:11:48 IST 2017 12 of 27 R/CR.A/1948/2006 JUDGMENT Parmar and knows accused and complainant 15(H Rameshbhai Prabatsinh Eye Witness 39 ) Parmar 16 Ramanbhai PSO Kalol Police Station 40 Parshottambhai Registered the FIR Prajapati 17 Dr.Brijendrasinh Medical Officer, Kalol CHC. 46 Malkansinh Given primary treatment to complainant and deceased 18 Ramsinh Fulsinh Dabhi PSI, Kalol Police Station 52 (I.O.) Recorded the complaint Documentary Evidences PW Name Note Exh.
No.
1 Panchnama for physical Panchnama exhibited for 7
condition of signature as panch witness
complainant (PW-1 & 2) Vikramsinh &
Ganpatbhai respectively
declared
2 Panchnama for place of Panch witness Rameshbhai 12
incident (PW-3) admitting his
signature
3 Muddamal receipts Panch witness of arrest 16 &
panchnama is admitting 17
signature on the receipts
therefore receipts were
exhibited
4 Inquest Panchnama Panch Witness Kishorbhai 19
(PW-5)
5 Medical Case papers Treating doctor (PW-9) 27
produced medical case
papers (history before
Doctor)
6 Map Map of place of incident 29
prepared by PW-10
7 Post Mortem Report Post Mortem carried out by 34
PW-12 Cause of death
8 First Information Report C.R.No.I-238 of 2005 41
registered with Kalol Police
Station
9 Medical Certificate of Issued by the Medical 47
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Zaveriben Officer of CHC at Kalol
(Complainant) (History by Zaveriben at
CHC, Kalol)
10 Medical Certificate of Issued by the Medical 49
Dalpatbhai (Deceased) Officer of CHC at Kalol 11 Complaint Recorded complaint of PW- 53 6 (Zaveriben) by Ramsinh Fulsinh Dabhi (PW-18) 12 F.S.L.analysis report Biological report of 61 muddamal articles 13 Serological report Blood group of deceased 62 and complainant was found on the weapons recovered
9. We have given our thoughtful consideration to rival submissions made by learned APP, learned advocate for the respondents by carefully perusing entire record of the case and findings emerged on record vis-a-vis judgement and order of acquittal contending reasons, findings and conclusions.
10. In the present case the incident took place around 12:30 p.m. during day hours on 25.10.2005 and the complaint Exh.53 filed by P.W.6 was recorded by P.W.18 which describes the incident as a whole. In the complaint P.W.6 states about her marriage which took place before 14 years with A-1 and out of wedlock three children were borne and in view of her relationship with one Dalpat Rayajibhai, now deceased, she left her matrimonial home and was living with Dalpat Rayajibhai since 12 years. According to her she had come to village Kanetiya from Kalol along with Dalpat Rayajibhai to meet her children from the initial marriage and stayed fortnight in the field of one Bhimsinh Ramsinh Parmar P.W.14. While they were Page 12 of 25 HC-NIC Page 14 of 27 Created On Tue Aug 22 00:11:48 IST 2017 14 of 27 R/CR.A/1948/2006 JUDGMENT on their way back to Halol where they were residing, A-1 and A-2 namely her husband and brother of the husband insisted her to join the family but was refused by her and infuriated by such denial, complainant was given kick and fist blow was dragged near house of A-1 and in front of the house of A-1 in the street inflicted a blow of 'Narash' on head of the complainant who fell down and again inflicted blow on right knee at that time Dalpat Rayajibhai, deceased paramour of P.W.6 tried to intervene and A-1 had inflicted repeated blows on head of Dalpat Rayajibhai who fell down and A-2 also inflicted a blow of 'Vansi' upon Dalpat Rayajibhai on head and upon shouting persons around arrived and they were saved by them. Some persons had hospitalized her and put her thumb impression.
11. In the context of above complaint, version of P.W.6 is seen at Exh.21. She in her examination-in-chief categorically reiterates the incident. However, A-2 inflicting blow of 'Vansi' and that her fingers were chopped off and that she was tied up with rope on electricity pole appears to be an improvement. At the same time version of inflicting head injuries on her and Dalpat Rayajibhai by A-1 and A-2 remain confirmed. She being an illiterate lady, in her cross-examination was unable to produce any judgement or order of competent court about divorce but states that some writing was made at Sansoli Police Station which has as such no significance. She further Page 13 of 25 HC-NIC Page 15 of 27 Created On Tue Aug 22 00:11:48 IST 2017 15 of 27 R/CR.A/1948/2006 JUDGMENT states that after she was taken for further treatment at hospital at Vadodara, Dalpat Rayajibhai was unconscious and later on succumbed to injuries. No doubt, she admits that rope used by A-1 and A-2 for tying with pole was not disclosed to police and some discrepancy about her admission to the extent that Dalpat Rayajibhai who was beaten by A-1 and A-2 was in another room but at the same time nothing emerges on record that incident of inflicting injuries on Dalpat Rayajibhai by A-1 and A-2 and such happening was not visible. P.W.18 admits to have recorded complaint Exh.53 and thumb impression by P.W.6. However, statement of P.W.7, P.W.8 and P.W.15 recorded by P.W.18 is deposed to vide Exh.53 that P.W.18 further admits to have followed procedure for receiving dead bodies and other medical certificates.
11.1. That along with the above, we find following injuries of P.W.6 and deceased from medical certificates of P.W.6 and deceased dated 25.10.2005 issued by medical officer P.W.17 Dr. Brijendrasingh Malkansingh, C.H.C. Kalol, in which injuries are described qua P.W.6 and injuries also upon Dalpat Rayajibhai.
Following are the injury certificates of P.W.6 and Dalpat Rayjibhai dated 25.10.2005 Injury certificate of Zaveriben Dalpatbhai Parmar "1. Laceration over vertex of heard 3.0x0.5 cm scalp deep Page 14 of 25 HC-NIC Page 16 of 27 Created On Tue Aug 22 00:11:48 IST 2017 16 of 27 R/CR.A/1948/2006 JUDGMENT
2. Swelling & deformity over Rt. Thigh severe tenderness present.
3. Incised wound over Rt. Upper lip 2.5 x 0.5 cm subcutaneous deep.
4. ? Broken of Rt. Upper central & lateral incisor & RT upper canine teeth Laceration over.
5. Laceration over Lt. Leg 1x0.5 cm (middle 1/3 ) anteriorly
6. Laceration Rt. Leg (upper 1/3) 1 x 0.5 cm Anteriorly"
Injury Certificate of Dalpatbhai Raijibhai Parmar dated 25.10.2005 "Unconscious pupils-B/L slightly constrieted & roting
1. Laceration over Lt. Occipital parietal region of Head scalp deep 8.0. x 1.0 cm
2. Laceration over occipital region of head, scalp deep 3.0 x 1.0 cm
3. Laceration Rt. Lower lip of 2 x 0.5 cm.
4. Laceration over Rt. Upper lip 1.5 x 0.5 cm
5. Swelling over Rt. Forehead & Lt. Temporal region
6. Stab Rt. Thigh (middle 1/3) Anteriorly 1 x 0.5 cm."
P.M. Report Column 17 and 19. External injuries on deceased Dalpat Rayjibhai:
1. "Abrasion with brownish scab, 2.5*1 cm irregular shape above outer margin of left eyebrow.
2. S.S.W. of 3 cm on mid parietal region with surrounding contusion in area of 3*2.5 cm, brownish in color.
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3. S.S.W. 8 cm in _____________ semi circular shape with brownish contused margins of 0.2 to 0.3 cm size on left parietal region of head.
4. S.S.W. of size 4 cm with brownish contused margin of 0.2-0.3 cm, transversely placed in mid parietal posterior region of head.
5. S.S.W. 5 cm ________________ obliquely placed with brownish contused margins of 0.2- 0.3 cm size on left occipital region of head.
6. Abrasion with brownish scab on right frontoparietal region of head 4*1 cm 4 cm above right eyebrow.
7. C.L.W. 1.5*1 cm contused brownish margin, muscle deep.
8. Abrasion with brownish scab 2*1 cm on right side of chin 2 cm below lower lip.
9. S.S.W. of size 5 cm on right forearm, vertical, posterolateral with brownish contused margin of 0.2-0.3 cm middle 3rd.
10. 3 Abrasions covered with brownish scab of size 1*1 cm each on right back of shoulder joint.
11. Graze abrasion with brownish scab in area of 5*4 cm on right outer back of abdomen.
12. Brownish contusion 5*3 cm on right outer back of buttock.
13. Scabbed abrasion 1*1.5 cm, brownish on base of penis.
14. 3 Abrasions coverd with brownish scab 1*1 cm each on shaft of penis.
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15. C.L.W. of size 2*2 cm on front of right thigh lower 1/3rd.
16. Abrasion covered with brownish scab, 2*1 cm right knee joint laterally.
17. Abrasion with brownish scab 5*3 cm right leg upper 3rd front with underlying palpable fracture right tibia. upper 3rd.
18. Abrasion with brownish scab of size 1.5*1 cm right leg front middle 3rd.
19. S.S.W., 5 cm with brownish contused margin of size 0.2-0.3 cm on left thigh back middle 3rd.
20. Abrasion with scab brownish 6*3 cm on left outer back of abdomen.
21. Abrasion with brownish scab 4*1 cm each, on right and left scapular region of back."
Column 19 • "Extracranial hematoma on both frontoparietal, occipital and left temporal region.
• Depressed fracture adjacent of each other of size 3*1 cm, 3*2 cm, 4*2 cm on left parieto temporo frontal base with fissured fracture ________________ depressed lefr parietal base to left parietal bone 8 cm in length.
• Extradural hematoma present in left frontoparietal region & both occipital region with subdural and subarachnoid haemorrhage in left hemisphere all over space and right parieto occipital region.
• Soft tissue contusion left supraclavicular region"
Page 17 of 25HC-NIC Page 19 of 27 Created On Tue Aug 22 00:11:48 IST 2017 19 of 27 R/CR.A/1948/2006 JUDGMENT 11.2. Both the injured were approached by Sarpanch of the village and in the certificate also it is opined that injuries on both injured were likely to be caused by hard and blunt substance/sharp cutting instrument. In continuation thereof P.W.9 and P.W.17 who were at C.H.C., Kalol admits to have given primary medical treatment to both injured and nature of injuries. That opinion about possibility of abrasion or rashes over the body by a person in case if she is tied with rope and even possibly had fallen at the height of 10 feet is of no consequence. However, 17 and more injuries caused to deceased Dalpat Rayajibhai but amongst of it, 6 injuries were major injuries. It is possible that minor abrasions, rashes or scares ultimately noticed in P.M. report were ignored or not taken note of. That above discrepancy is to be considered along with the injuries in column 17 and 19 of P.M. report and testimonies of P.W.12 Dr. Vinayakrao Vasudevrao Patil who categorically described that in all 21 injuries and Injury Nos. 1, 2 and 3 were on vital parts of the head namely temporal, parietal and occipetal leading to fracture of the skull resulting into hemorrhage. When the muddamal Article No.8 'Narash' was shown to above P.W. it is opined that except injury No.11 all injuries could be possible by such an article. Therefore, the case on hand according to us is all believable, trustworthy and reliable testimonies of P.W.6 Zaveriben Dalpatbhai Parmar injured witness again well supported by medico legal Page 18 of 25 HC-NIC Page 20 of 27 Created On Tue Aug 22 00:11:48 IST 2017 20 of 27 R/CR.A/1948/2006 JUDGMENT evidence and FSL report which reveal blood Group 'B' on clothes put on by injured P.W.6 and deceased and also on Articles 8 and 9 namely 'Narash' and 'Vansi' used for inflicting injuries. As such no corroboration is necessary in the facts of this case but version of injured P.W.6 as per complaint and statement before the police and her testimonies being illiterate labourer and a woman not only inspires confidence but the same is trustworthy and therefore reliable. All the above aspects required to be considered inasmuch as we are exercising power under Section 386 of Code of Criminal Procedure, 1973 against the judgement and order of acquittal and though efforts are made by learned advocate for A-1 and A-2 to find out reasons on which findings of innocence of the accused are based. Hardly any reason is noticed and a clue is taken from insignificant or irrelevant part of testimonies ignoring the crux of such testimonies and complete go by given to medico legal and forensic evidence and testimonies of I.O.'s by the trial Court amount wholly illegal exercise of powers and the same is demonstrably, unsustainable resulting into miscarriage of justice by not believing case of the prosecution and giving benefit of doubt to the accused.
12. The decisions relied on by learned advocate for respondents in the case of Joseph (supra) is easily distinguishable inasmuch as though the witness was an injured witness his presence at the time and place of Page 19 of 25 HC-NIC Page 21 of 27 Created On Tue Aug 22 00:11:48 IST 2017 21 of 27 R/CR.A/1948/2006 JUDGMENT occurrence was found to be doubtful and it was in conflict with other evidence. No such case is made out in the case on hand. On the contrary presence of injured eye witnesses and other witnesses and even A-1 and A-2 is borne out from the record and for not believing version of P.W.6, an injured eye witness, no cogent reasons are given. In the above case there was direct conflict between medical and occular evidence one and therefore it was held that when the trial court gave cogent reasons for acquittal, High Court should not have interfered with the acquittal merely because another view was possible.
13. In the case of Devatha Venkataswamy Alias Rangaiah (supra) in which the Apex Court on the contrary held that the Appellate Court exercising power under Section 386 of the Code of Criminal Procedure, 1973 can re-appreciate the evidence on record to arrive at a just conclusion, however, with a rider without the first analyzing the finding of the trial Court and then for valid reasons to be recorded it can reverse such findings. That reasons recorded by us in earlier paragraphs in juxtapositions to reasons and findings of the trial Court we have no doubt that the case on hand is for reversal of the acquittal. Therefore while agreeing with the law laid down on both the above decisions, we find that facts and circumstances and evidence in the case is completely different and, therefore, the same is not applicable in stricto senso. On the contrary judgement relied on by Page 20 of 25 HC-NIC Page 22 of 27 Created On Tue Aug 22 00:11:48 IST 2017 22 of 27 R/CR.A/1948/2006 JUDGMENT learned APP in the case of Alagupandi @ Alagupandian (supra) deal with a case in which FIR was filed within one hour of the incident by Sarpanch on information from brother of the deceased and again evidence of solitary witness namely brother of the deceased whose presence on the spot was not doubtful and it was corroborated by evidence of medical and neighbour and conviction under Section 302 was upheld by the Apex Court. The above judgement also in para 16 referred to earlier judgement and it is held as under:
"16. We are not impressed with the contention that PW1 is the sole and interested witness and, therefore, his statement cannot be relied upon by the Court for returning the finding of conviction. It is a settled principle of law that the Court can record a finding of guilt while, entirely or substantially, relying upon the statement of the sole witness, provided his statement is trustworthy, reliable and finds corroboration from other prosecution evidence. In the case of Govindaraju alias Govinda v/s. State of Sriramapuram P.S. & Anr. (Crl. Appeal NO.984 of 2007 decided on March 15, 2012): (Reported in AIR 2012 SC 1292:2012 AIR SCW 1994), this Court held as under:
"11. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eye-witness). It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the Page 21 of 25 HC-NIC Page 23 of 27 Created On Tue Aug 22 00:11:48 IST 2017 23 of 27 R/CR.A/1948/2006 JUDGMENT prosecution can bring home the guilt of the accused even with a limited number of witnesses. IN the case of Lallu Manjhi and Ann v/s. State of Jharkhand (2003) 2 SCC 401 : (AIR 2003 SC 854 : 2003 AIR SCW 308), this Court had classified the oral testimony of the witnesses into three categories:-
(a). Wholly reliable;
(b) Wholly unreliable; and
(c) Neither wholly reliable nor wholly unreliable.
12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proportioner of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of event that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the cases of Joseph v/s. State of Kerala (2003) 1 SCC 465 :(AIR 2003 SC 507:2002 AIR SCW 4933) and Tika Ram v/s. State of Madhya Pradesh (2007) 15 SCC 760. Even in the case of Jhapsa Kabari and others v/s. State of Bihar (2001) 10 Page 22 of 25 HC-NIC Page 24 of 27 Created On Tue Aug 22 00:11:48 IST 2017 24 of 27 R/CR.A/1948/2006 JUDGMENT SCC 94 :(AIR 2002 SC 312 :2001 AIR SCW 5037), this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy.
13. In the case of Jhapsa Kabari (supra), this Court noted that the fact that simply because one of the witnesses (a 14 years old boy) did not name the wife of the deceased in the fardbayan, it would not in any way affect the testimony of the eye-witness i.e. the wife of the deceased, who had given graphic account of the attack on her husband and her brother-in-law by the accused persons. Where the statement of any eye-witness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy."
14. The law laid down as above and facts of this case about presence of injured eye witness and her version about incident find corroboration from other P.W.'s and I.O.'s and also from medico legal and FSL, a case is made out to reverse the judgement and order of acquittal for the reasons recorded herein above and for following admitted facts emerged on record about quarrel which took place and initially efforts made by A-1 and A-2 to convince P.W.6 to stay with family and her reluctance to do so for which, A-1 was infuriated and it appears that the weapons of assault as such are handy for agriculturists and in the Page 23 of 25 HC-NIC Page 25 of 27 Created On Tue Aug 22 00:11:48 IST 2017 25 of 27 R/CR.A/1948/2006 JUDGMENT backdrop of willingness of P.W.6 to visit and meet her children born out from A-1, so appears from her testimonies, we find that under the circumstances, the present is the case that A-1 and A-2 had knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death that it is committed without premeditation in a sudden quarrel and in the heat of passion and deceased was given a blow by an agricultural equipment, thus we find that a case is made out to convict accused under Section 304 Part II of India Penal Code.
15. Though it is submitted by learned advocate for A-1 and A-2 that inspite of several attempts to contact A-1 and A-2, no information is received and is unable to contact them, we are of the view that since we are reversing the judgement and order of acquittal, we would like to hear A- 1 and A-2 on sentence to be imposed and, therefore, for such hearing and presence of A-1 and A-2, the appeal is kept for orders on 21.8.2017.
16. Registry to do the needful to secure the presence of A-1 and A-2 by issuing bailable warrant in the sum of Rs.5,000/- against the respondents - accused.
(ANANT S.DAVE, J.)
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(R.P.DHOLARIA,J.)
SMITA
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