Gujarat High Court
Dahyabhai Khushalbhai Ahir And Ors. vs State Of Gujarat on 18 June, 1996
Equivalent citations: (1996)3GLR845
JUDGMENT K.J. Vaidya, J.
1. Dahyabhai Khushabhai Ahir and five others, by this appeal has brought under challenge the impugned judgment and order dated 13-12-1993 rendered in Special Atrocities Case No. 9 of 1993 by the learned Sessions Judge, Bharuch, wherein on their coming to be tried for the alleged offences punishable under Sections 302, 343, 147, 148, 149 of I.P.C. read with offences punishable under Sections 3(l)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985; and under Sec 135 of the Bombay Police Act, 1951 were at the end of the trial ordered to be convicted for the same and sentenced to R.I. for life and to pay a fine of Rs. 5,000/- and in default, to undergo R.I. for two years and various other periods of R.I. and fine for other offences, as stated in detail in the impugned judgment and order.
2. To briefly narrate the prosecution case, the incident in question wherein Dahyabhai Laxmanbhai was done to death at the hands of the appellants-accused took place on 16-12-1992 at 12-00 noon in the field at village Nikora. This incident was eye-witnessed by PW-3 Mahendra Laxman who happens to be brother of the deceased Dahyabhai and two other witnesses, viz., PW-4 Mahesh Motibhai and PW-5 Mahesh Tribhuvandas. The last two witnesses did not support the prosecution. According to PW-3 Mahendra Laxman, on the aforesaid date, time and place, he and his brother Dahyabhai were quarrelling as he was not going to the field. In the meantime, (1) Dahyabhai Khushalbhai; (2) Bhagubhai Khushalbhai; (3) Fulabhai Parbhubhai Rama; (4) Balubhai Shanabhai; (5) Rameshbhai Shanabhai; and (6) Ishwarbhai Ramabhai appeared on the scene. The accused Nos. 1, 3, 4 and 5 were armed with sticks, while the accused No. 2 was armed with Dharia and accused No. 6 was armed with axe. These six persons forming an unlawful assembly, picked up a quarrel by starting a talk about destroying a hut. Thereafter, the accused No. 2 gave a Dharia blow on the head of Dahyabhai and the accused No. 6 gave an axe blow on the right hand wrist of Dahyabhai, as a result of which he fell down. Thereafter, rest of the accused, viz., accused Nos. 2, 3, 4 and 5 gave stick blows. On Dahyabhai raising alarm, PW-4 Mahesh Motibhai and PW-5 Mahesh Tribhuvandas came running, whereupon PW-3 gave the names of the appellants as the assailants of injured Dahyabhai. In the meantime, accused made good their escape. Thereafter, the injured Dahyabhai was removed to the Civil Hospital, Bharuch, where during the course of the treatment he expired. In the meantime, PW-10-Duty Head Constable-Motibhai Govindbhai at the Civil Hospital on coming to know that the injured Dahyabhai was brought to the Hospital, went there where he found injured was unconscious and unable to speak, and accordingly after making inquiry, he took down the complaint from PW-3 Mahendra Laxman which is produced at Ex. 39. On the basis of this, after the investigation was over, the appellants-accused came to be charge-sheeted for the aforesaid alleged offences to stand trial before the Sessions Court, Bharuch.
3. At trial, the appellands pleaded not guilty and claimed to be tried Their defence was of the total denial. The trial Court after duly appreciating the prosecution evidence brought on record, placing implicit reliance upon the evidence of the solitary eye witness PW-3 Mahendra Laxman as corroborated by the medical evidence on record that of PW-20 Dr. Joseph Christian, convicted the appellants-accused as stated above in para 1 of this judgment, giving rise to the present appeal.
4. Heard Mr. K.J. Shethna, the learned Advocate for the appellants and Mr. M.A. Bukhari, the learned A.P.P. for the State. On going through the evidence, it appears that though the prosecution has examined in all three eye witnesses, viz., PW Nos. 3, 4 and 5, since PW Nos. 4 and 5 have been declared hostile having not supported the prosecution, the fate of the prosecution case hinges on the slander evidence of the solitary eye witness PW-3 Mahendra Laxman who happens to be real brother of the deceased. We have also tried to find out whether there was any other circumstantial incriminating evidence on the record leading corroboration to the evidence of eye witness PW-3, but it was stated at the Bar by the learned A.P.P. that, there was none.
5. On carefully scanning the evidence of PW-3 Mahendra Laxman, he appears to be a got-up witness and accordingly does not inspire any confidence for the reasons to be stated hereunder. For this purpose, it is interesting to note that at the earliest when the complaint of PW-3 came to be recorded by PW-10-Head Constable Motibhai Govindbhai on 16-1-1992, this witness has given the names of all the accused persons with their respective weapons in their hands, though they have not been attributed any specific act while injuring and bringing about the death of Dahyabhai. Now, when this witness came to be examined before the Court, he made a material improvement by attributing particular blows to the accused persons. Not only that, but this witness who had named all the six persons quite surprisingly could not name some of the accused persons before the Court. Further, not only that, but he could not identify some of the accused persons before the Court!! To be particular, he could not identify accused Nos. 3,4 and 5!! It is true that the evidence of this witness came to be recorded before the Court after a considerable time. But having regard to the fact that PW-3 was real brother of the deceased in whose presence the accused persons had attacked and when he named them in the complaint Ex. 39, it is simply strange and quite inconceivable that he would fail to name and/ or identify them properly before the Court. Further, as stated above, this witness has improved upon by attributing blows to the particular witness on the particular part of the deceased!! The matter does not simply rest here as his presence is rendered further doubtful as none of the accused have injured him because when the motive alleged was the old enmity with the deceased, then in that case PW-3 when was really present at the scene of the offence, then in all probability, he would not have been spared by the accused person! But as against that, he has not received even a scratch of injury on his person. All these circumstances throw thick cloud of suspicion around his credibility as a truthful witness. Under such circumstances, when the prosecution case ultimately depends upon the evidence of the solitary eye witness, it would be simply risky and hazardous to record the order of conviction and sentence and that too under Section 302 of I.P.C., as it appears to have been unfortunately done by the learned Sessions Judge in the instant case. We have indeed no doubt in our mind that the evidence of PW-3 is not that dependable on the basis of which we can sustain the order of conviction and sentence passed by the learned Sessions Judge. Nothing other and further was pointed out by the learned A.P.P. on the basis of which the impugned order of conviction could be sustained. In this view of the matter, we have indeed no alternative left with us but to reverse the order of conviction and sentence and acquit the accused.
6. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence passed by the trial Court is quashed and set aside. The appellants are ordered to be set at liberty forthwith unless their presence in jail is required in connection with any other case. Fine, if paid, to be refunded.