Gujarat High Court
Rajubhai @ Rajkumar Atulbhai Christian vs State Of ... on 14 August, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/130/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 130 of 2006
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 or any order made thereunder ?
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RAJUBHAI @ RAJKUMAR ATULBHAI CHRISTIAN....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR IM MUNSHI, ADVOCATE for the Appellant(s) No. 1
MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 14/08/2015
CAV JUDGMENT
Heard learned advocate Mr. IM Mansuri for the appellant and Ms. Chandarana, Ld. APP for the respondent - State.
Page 1 of 24HC-NIC Page 1 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT 2 The appellant has been convicted by the impugned judgment and order dated 28/12/2005 passed in Sessions Case No. 340/2003 by the Ld. Addl. Sessions Judge of Court No. 13, City Sessions Court, Ahmedabad City, for the offence under section 304 Part-II of the Indian Penal Code [IPC] and sentenced to undergo rigorous imprisonment [RI] for five years and fine of Rs.10,000/- and in default of payment of fine, to undergo RI for six months.
3 The appellant was tried for the offences under sections 302, 323, 324, 506[2] and 114 of the IPC and section 135[1] of the Bombay Police Act and after trial, the appellant has been convicted as aforesaid.
4 Though charge-sheet was filed against three persons, only accused no. 1 has been convicted and rest of the accused have been acquitted. The charge was framed at exh. 2 on 11/3/2004 alleging that the accused no. 3 was suspecting an illicit relation of the victim with her husband and, therefore, on 29/6/2003 at about 10.00 PM when there was a quarrel between the victim and accused no. 3, the accused no. 3 has abused the victim by improper and unparliamentary words and insulted her and threatened her to kill. Whereas accused nos. 1 and 2 have Page 2 of 24 HC-NIC Page 2 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT instigated and abetted such act of accused no. 3 and in addition to such insult, all the accused have joined together in beating the victim by kick and fist on different parts of her body viz., stomach, etc. Whereas accused no. 1 i.e., present appellant has given knife blow on the back side of hip of the victim and such blow had resulted into death of the victim during treatment. Therefore, charges under sections referred hereinabove was framed and on denial of such charge, accused were tried and convicted as above.
5 The prosecution has examined as many as 14 witnesses and produced 20 documentary evidence to prove such charges. However, after appreciation of evidence and considering rival submissions, the trial Court has confirmed the conviction of accused no. 1 alone, as recorded hereinabove. Therefore, present appeal is only by the appellant - accused no. 1.
6 The sum and substance of the appellant's arguments is to the effect that though the charge was under sections 323 and 324 only, conviction is under section 304 Part-II and, therefore, conviction is illegal and that death of the victim is not due to injuries sustained by her in such incident, but it was due to negligence of Page 3 of 24 HC-NIC Page 3 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT the doctor when doctor has admitted that the cause of death is because blood was not provided in time to the victim after the incident, in addition to regular defenses like contradiction in the prosecution evidence and appreciation of evidence by the trial Court against them, contending that it should have been appreciated by extending benefit of doubt to the accused when charges as per charge-sheet are not believed to be proved.
7 At the outset, it is to be recorded that there is no substance in the first submission that the conviction is vitiated because of non- framing of charge under section 304 Part-II, for the simple reason that though the FIR may be disclosing sections 323 and 324 at the relevant time, but ultimately when victim has died, charge sheet was filed under section 302 of the IPC also and charge under section 302 was certainly framed as recorded hereinabove. However, it seems that on appreciation of evidence, when trial Court has found that probably there is no intention, motive or prior plan to commit murder of the victim, the Court has instead of confirming conviction under section 302, convicted the accused under section 304 Part-II. Therefore, first submission has no substance so as to acquit the appellant.
Page 4 of 24HC-NIC Page 4 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT 8 Similar is the situation in second submission regarding cause of death, even if there is an admission by the doctor that if blood was provided in time, victim could have been saved. Suffice it to say that even if every person has a right to defend himself at any cost, such submission is inhuman and unwarranted by an accused who has inflicted injury by deadly weapon like knife on thigh of the victim - lady and then to say that since death is caused because of heavy bleeding, he is not responsible for the death because doctor should have provided blood to the victim at the earliest. Evidence of doctor is to be read with reference to his knowledge and not with reference to the mindset or submission by the accused. When doctor says that if blood was provided in time, life of victim could have been saved, it cannot be argued that there was negligence of the doctor for such death and appellant is innocent.
9 It is true that P.W. No. 8 at exh. 20 -
Dr. Priyen Jagdishchandra Shah, who has given treatment to the victim, has admitted in his deposition that cause of death is due to loss of blood and he voluntarily adds that since blood group of the victim was negative, it was not readily available. However, on such disclosure, the Court has put a specific question to the Page 5 of 24 HC-NIC Page 5 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT witness that if blood was available, victim could have survived and in response to such query by the Court, the witness - doctor has replied that the cause of death is not only because of non- availability of blood. If we appreciate the entire medical evidence, it becomes clear that P.W. No. 8 at exh. 20, a doctor, who has treated and operated the victim, has in addition to above admission, categorically stated that he has examined the witness and got her examined by Gynecologist also and found stab injury on both hips, CLW on stomach. Amongst them, injury on left thigh was deep upto peritoneal cavity and there was heavy bleeding from such injury. Therefore, initially treatment to stop bleeding was given and since patient was in shock, attempt was made to recover her from mental shock and thereafter, she was operated during which blood mixed liquid approximately 1.5 ltrs., was removed from the stomach and that there was 2 CM perforation in the large intestine. Whereas multiple perforation in the small intestine and vein supplying blood was having cut. There was blood collection on right side of ligament also. Multiple perforation was joined by cutting intestine; whereas stitches were taken in large intestine and for all activities, intestine was taken out from the body. It is further stated that he got the history of injury from the Page 6 of 24 HC-NIC Page 6 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT relative of the victim that she has been beaten by sharp and hard substance. He specifically opined after examining the Muddamal weapons that such injuries are possible by such weapons. During his cross examination, in addition to admission discussed hereinabove, he deposed that patient was initially examined by another doctor, namely Dr. Umang Joshi and she was also referred to Gynecologist and that the victim herself has not stated any history of injury directly to him and that he found cut injury on both the thighs, but could not confirm internal hemorrhage, for which he advised to perform sonography. He also confirms that both the injuries are having same measurement. So far as injuries on intestine are concerned, he has clarified that it could not be noticed even in sonography. He was cross examined at length by advocate for the accused so as to bring his medical knowledge on record, but we are concerned with the facts relating to the injuries sustained by the victim in the incident and irrespective of any complication before, during or after treatment. It is undisputed fact that the victim has died because of septicemia resulted due to injuries inflicted by the appellant. All other suggestions and answers thereof are not material so far as such expert witness is concerned since he is not aware about the factual details of the incident and, Page 7 of 24 HC-NIC Page 7 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT therefore, whatever he opined on query by the defense lawyer is to be treated as his opinion on the subject and in absence of any evidence to connect it with the victim, such opinion has nothing to do with the facts and evidence on record and thereby result of appreciation of entire evidence on record.
10 So far as general defense regarding appreciation of over-all evidence to confirm guilt of the appellant is concerned, we have to scrutinize rest of the evidence which is as under.
11 P.W. No. 1 at exh. 9 - DashrathbhaiRatilal Rathod is husband of the victim. It is his say that the incident has taken place on 29/6/2003. When he returned from Patan at 11.00 pm, he found a crowd gathered near his flat and at that time one person from the crowd has disclosed his identity to the police as such and thereupon the police has asked his name and then inquired that what is his relation with Shardaben. When he conveyed that she is his wife, thereupon police has disclosed the incident stating that the accused no. 1 has given knife blow to Shardaben - victim and thereupon Shardaben has been taken to Pokhraj Hospital. Therefore, he was frightened, but ultimately Page 8 of 24 HC-NIC Page 8 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT rushed to the hospital where her wife was under
treatment and she conveyed him that when she was returning to house, all the accused as well as one Vishalbhai Babubhai had intercepted her and started beating her by kick and fist and when she was trying to run away to save herself near ground floor tank between block A and B, they have stopped her and given blow on her stomach and on private part and meanwhile accused no. 1 - Raju has given blow by knife and thereafter, one Ratilal Shah resident of block D had called the police and police had taken her to the hospital. She identified all the accused before the Court. He confirmed that his wife had expired on 3/7/2003 in the hospital and that her wife has lodged complaint while she was in the hospital and police has recorded her statement. He further deposed that even before such incident, there was quarrel before 4/5 days regarding supply of water and at that time also accused threatened the victim to kill her and when he went to police station to lodge a complaint, police has not registered his complaint stating that it is a simple quarrel for water for which complaint cannot be registered. He was cross examined at length. However, only material portion is regarding contradiction with reference to 4th person, namely Vishal Gohil since he is not charge-sheeted. The witness has admitted that the Page 9 of 24 HC-NIC Page 9 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT victim had a quarrel with mother of Vishal, namely Jyotiben and in fact accused have quarrelled with them only in support of Jyotiben. An attempt was made to contract him that in his police statement, he has stated that Vishal has also beaten his wife and that victim has conveyed him that the name of Vishal was wrongly disclosed in her complaint by oversight and in state of fear. It is also tried to contradict him that the witness has not disclosed to the police in his statement that Vishal was not amongst persons who were beating the victim, but Vishal has tried to rescue the victim. On the ground of such contradictions, even if it is proved, it is touching the investigation and inclusion of Vishal as an accused, but in no way it proves either innocence or evidence in favour of the accused so as to get rid of their conviction, when there is cogent, reliable, specific and corroborating evidence against him.
At this stage, it would be appropriate to verify the evidence of Investigating Officer, who has recorded statement of this witness being PSI K B Solanki, who is examined at exh. 30 as P.W. No. 12. In his cross examination, IO has though admitted that it is revealed during the investigation that there was a quarrel between the victim and Jyotiben - mother of Vishal, for Page 10 of 24 HC-NIC Page 10 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT water supply, he also admits that husband of the victim has not stated in his statement that Vishal has also beaten his wife. However, he also admits that such witness has stated in his submission that name of Vishal was disclosed by the victim in her complaint because of oversight and under fear. Therefore, there is nothing in the evidence or on the record to prove that, even if there is some contradiction with reference to the involvement of Vishal, though there is no such contradiction, that there is no evidence against accused no. 1 and he could not be convicted when there is evidence against him to confirm that he has inflicted injuries to the victim, which ultimately resulted into her death.12 P.W. No. 2 at exh. 10 - Divaben
Amrutsinh is neighbour. She has categorically deposed that on the date of incident when she was sitting in the parking area of her block with 5/6 other ladies, she heard the voice of accused no. 3 - Indiraben shouting that you are grabing income of her husband for last 4 years. However, she has chosen to remain neutral by saying that at the relevant time there was darkness since the electric supply was cut off and that though she has seen a quarrel between victim Shardaben and accused Indiraben, that who was beating whom and that she had not gone to the place of incident Page 11 of 24 HC-NIC Page 11 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT but police has come to the place at night and that she knew that Shardaben has expired. Thereby she was declared hostile when she deposed that she is not aware about her statement regarding actual incident of inflicting knife blow by Raju to Shardaben. Thereby though witness is declared hostile, the defense lawyer has tried to get some confirmation through such witness and hence cross examined her, but it was not formal cross examination. However, in such cross examination, the witness has explained the topography of the colony which confirms the prosecution evidence to that effect and disclosed her knowledge about disputes between the victim and her husband and admits that victim was operated as she had been to the hospital. Therefore, though witness is hostile, the appellant could not rebut her part of evidence which she otherwise admits, nor could he prove his innocence through such witness.13 P.W. No. 3 at exh. 11 is panch witness
of recovery Panchnama of knife from the appellant. Though he admits that he has signed the Panchnama, he does not support the activities of such Panchnama and does not confirm that knife was recovered in his presence and shown by the accused. Therefore, he was declared hostile. However, during cross examination by the A.P.P., now witness has admitted that it is true that Page 12 of 24 HC-NIC Page 12 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT accused has said in his presence that he has voluntarily shown his readiness to show the place where knife is hidden and that police has explained them about their role as panch. He also admits that accused has conveyed the driver to take the vehicle at Achet cross road and then to take a turn and reached to Rathi Apartments and thereupon how accused has shown the knife to police in their presence. Therefore, though witness has tried to avoid supporting the activities during Panchnama and though he denies several facts, practically there is nothing in his evidence which can support the appellant to prove his innocence. During his cross examination he admits that he is serving with one advocate since last 3/4 years and getting Rs.50/- per day, but he denies suggestion that he is acting as tout of such advocate. However, he has disclosed his occupation in the Panchnama as labourer. He also admits that the place from where Muddamal is recovered, is freely accessible by any-one and that papers of Panchnama, slip, etc., were prepared by the police and he has simply signed them. He also explained the topography of the place and, therefore, though he may be termed as a chance witness, there is positive evidence in favour of the prosecution and against the appellant. But in any case, it does not prove that the appellant is absolutely innocent.
Page 13 of 24HC-NIC Page 13 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT 14 P.W. No. 4 at exh. 14 is also panch witness regarding recovery Panchanma of the knife. He has in categorical terms not only supported the case of the prosecution, but explained the activities carried out during Panchnama in detail. He explained that how accused has shown the place where knife was hidden by him and how it was recovered from such place which he identifies as Muddamal article no. 6 with his signatures on such article and confirms that other signatures were put by another panch. He also identifies accused before the Court. During cross examination, it is revealed that he was running his motor garage near the police station. He also admits that he knows Ajay Dalal since he is coming to the police station, but that would not negative his deposition so as to discard it totally when accused could not rebut his evidence or to prove that he is just chance witness and knowing nothing.
15 P.W. No. 5 at exh. 15 Ratilal Shah isneighbour of the victim who was serving in Ahmedabad Electricity Company at the relevant time. It is his say that on the date of the incident he was called by Savitriben P.W. No. 2. Thereupon, he had been to the place of incident Page 14 of 24 HC-NIC Page 14 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT where he found that the victim was lying between blocks A and B of their colony and she was shouting that she has received injuries. At that time one security watchman of Ahmedabad Electricity Company reached there with torch and in light of torch, he has seen the bleeding from the body of the victim. Thereupon, he has sought help of people and though people have gathered, none has turned up to help him, he has gone back to his house and made phone call to the police. Since police was in nearby area, they reached the place and thereupon he took the victim to Pokhraj Hospital in Sabarmati with the help of two policemen and got her admitted there. It is further stated by the witness that the victim was required to be operated but nobody from his family was present at the place as her husband had been to Patan, he had gone to the Deputy Mayor Shri Hareshbhai and told him to recommend the hospital people to continue the treatment and thereafter, he went home to make phone call to husband of the victim. Thereby he supports the prosecution case with full details and further confirms that meanwhile Mr. Panchal has reached the hospital and that he also reached there after some time, when treatment was started. However, so far as involvement of the accused is concerned, he admits that the victim has not told her that who has inflicted injuries, but he Page 15 of 24 HC-NIC Page 15 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT confirms that when wife of Atulbhai and younger brother of the present appellant were quarreling with the victim, he had intervened to put an end to such quarrel. He further reconfirms that such intervention was done by him when he came down after hearing the shouting calling him i.e., both, at the place of incident and at the time of incident itself. However, he could not confirm that how and where victim was injured. Witness also categorically identifies all three accused who were present before the Court and confirms that police has recorded his statement. During cross examination, an attempt was made to prove that witness has exaggerated from his statement before the police. However, witness has rightly said that there is no disclosure in his statement regarding quarrel and abusement between Indiraben and younger brother of Rajubhai because police has never asked him about it. He was cross examined about the topography of the place of incident, but from such cross examination, nothing material could be proved on record by the appellant. Whereas on the contrary, so far as factual details regarding cause of quarrel between two groups is concerned, cross examination proves the knowledge and involvement of the witness when he deposed that he was aware about the dispute between two groups regarding water supply and confirms that he did not find Page 16 of 24 HC-NIC Page 16 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT Vishal at the place of incident, who is son of Jyotiben. This part of evidence negatives the defense version regarding improper investigation so far as non-filing of charge-sheet against Vishal is concerned. He was also cross examined regarding his presence in the hospital, but he replied to all the questions perfectly and thereby appellant could not disprove his version. Similar is the situation so far as entire evidence of the witness is concerned. Thereby this witness is absolutely an independent witness as he has not only supported the prosecution case but confirmed all the facts in nut-shell and appellant could not rebut his evidence or prove himself innocent by cross examination.
16 P.W. No. 6 at exh. 16 is Dr. BhavnabenBhatt, who has examined dead body of the victim and performed post mortem. She has described all the factual details so far as physical condition of the victim is concerned, wherein she has categorically stated that there were five injuries with sharp cutting instrument. All such injuries were serious and capable of resulting into death since intestine of the victim had come out of the body. So far as cause of death is concerned, it is specifically stated that it is because of the shock due to injuries on left thigh which has gone deep upto cavity of the Page 17 of 24 HC-NIC Page 17 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT stomach. She also proved the post mortem note at exh. 17. During cross examination also she confirms her examination of the dead body and replies certain suggestions put by the appellant. Thereby, appellant could not rebut his evidence to prove his innocence.
17 P.W. No. 7 at exh. 18 is R.M.O. PokhrajHospital, who has examined the victim and thereafter managed to get her examined and treated by full time Surgeon Dr. Priyen Shah and examination by Gynecologist Dr. Dilip Shah. He brought treatment papers with him and injury certificate and proves it at exh. 19. It is his case that the victim was under treatment of Dr. Priyen Shah and he has not given any treatment or examined the witness. Therefore, there is nothing in his cross examination.
18 P.W. No. 8 at exh. 20 is Dr. Priyen Shah, who has explained about the injuries and treatment of the victim in detail, which is considered in para 9 hereinabove and hence factual details are not reproduced. However, he certainly proves that cause of death is injuries received at the time of incident and appellant could not rebut such evidence.
19 P.W. No. 9 at exh. 24 is panch witness Page 18 of 24HC-NIC Page 18 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT of the place of incident. However, he turned hostile, but considering other evidence of independent witnesses, minute details of the place of incident is not material when ultimately victim has died and there is no dispute about her death with such injuries. The only issue remains to be decided is regarding involvement of the present appellant - accused rather than the incident, though details of incident may be considered to prove innocence of the accused. Therefore, non-supporting panch witness would not help the accused to confirm his acquittal, when other evidence and witnesses are confirming the commission of offence as alleged in the charge- sheet. So is the position that remaining two witnesses being P.W. Nos. 10 and 11 respectively at exhs. 28 and 29 when they turned hostile and refused to admit their version in their statements and recovery Panchnama of the clothes of the accused. However, for the reasons recorded with reference to P.W. No. 9, non-supporting of the prosecution case by such witnesses would not prove that appellant is innocent and thereby deserves to be acquitted.
20 Remaining three witnesses being P.W. Nos. 12 at exh. 30, P.S.I. And IO, P.W. No. 13 at exh. 41, PI and IO in succession as well as P.W. No. 14 at exh. 54 being P.S.O of Sabarmati Police Page 19 of 24 HC-NIC Page 19 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT Station, have disclosed their activities so far as present incident is concerned, which includes registration of FIR and history of investigation so also the evidence against the appellant, for which they have filed charge-sheet. Being Police Officers, they have perfectly narrated their part of investigation and support the case of prosecution so as to confirm the conviction of the accused. An attempt was made during cross examination to prove certain contradictions and an attempt was made to prove that death was not because of the injuries sustained in the incident. An attempt was also made to prove that victim was having quarrels with other persons. However, examination and scrutiny of such evidence makes it clear that the appellant has failed to rebut their evidence and thereby to prove himself innocent in any manner whatsoever.
21 Surprisingly, in his statement under section 313, the appellant accused had though tried to deny all the factual details, specifically stated that in fact victim had quarrel with Vishal, who was his friend and thereby it is suggested that because of such dispute with Vishal, his name is wrongly disclosed. As against that, the evidence shows that involvement of Vishal is not proved when even independent neighbour has confirmed that Page 20 of 24 HC-NIC Page 20 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT Vishal was not there, but the fact remains that by such statement under section 313 practically accused is now admitting the occurrence of incident at the place and time as disclosed in the evidence. Then only defense is that his name is wrongly stated, only because he is friend of Vishal. However, fact remains that though name of Vishal was disclosed by the victim, no evidence was found against him during investigation and, therefore, Vishal is not charge-sheeted at all. If at all Vishal was involved in the incident, the appellant should have disclosed his name during investigation to the police so as to join him as co-accused. Therefore, in absence of any evidence against Vishal, only because some suggestion was made and only because name of Vishal is referred during investigation, it cannot be said that present appellant is innocent.
22 Therefore, over-all scrutiny and discussion of the evidence as above, makes it clear that there is sufficient, cogent and reliable evidence against the appellant and thereby there is no substance in his appeal so as to acquit him.
23 In addition to oral submissions, learned advocate Mr. Munshi for the appellant has filed Page 21 of 24 HC-NIC Page 21 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT main points of submissions of seven pages. Since most of them are repetition of oral submissions, only material and left out issues, if any, for consideration based upon oral submission, are answered herein. It is submitted that there is neither circumstantial evidence nor direct evidence in the form of eye witness and there are material contradictions in the deposition. However, over-all reading and scrutiny of evidence, which is discussed hereinabove, makes it clear that there is clear circumstantial evidence against the appellant. Whereas some contradictions which are in fact clarified by the witness during his evidence before the Court, it cannot be treated as evidence rebutting the prosecution case, inasmuch as, it is settled legal position that FIR and police statement cannot be reproduced in evidence in verbatim and there may be some different words between them. However, such contradictions are not much material when it is in the form of disclosure of the same details, without changing entire version of the story. Whereas so far as disclosure of some more facts is concerned, it is also settled legal position that FIR and police statement may be prima-facie version of the incident and witness may explain it in detail while deposing on oath before the Court and thereby unless there is change in the entire story, some clarification Page 22 of 24 HC-NIC Page 22 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT cannot be treated as contradiction and alteration and modification of previous version.
24 It was again emphasized in such submission that there is contradiction in the name of Vishal Babubhai Gohil. However, it has been explained by all the witnesses that disclosure of name of Vishal was not proper since he was not present at the place of incident and it cannot be ignored that when victim is seriously injured, she might have referred the name of Vishal with some other reference, but all other evidence, more particularly independent witness, confirmed that Vishal was not present at the place of incident, there is no reason to consider such contradiction as sufficient evidence to acquit the appellant when there is other ample and reliable evidence against him. At the most, if at all there is involvement of Vishal with some evidence, trial Court would have added him as accused. Even during trial, there is no evidence against Vishal.
25 Reference to explanation - 2 to section 299 of the IPC defining culpable homicide is material, which reads as under :
"Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by Page 23 of 24 HC-NIC Page 23 of 24 Created On Sat Aug 15 02:16:12 IST 2015 R/CR.A/130/2006 CAV JUDGMENT resorting to proper remedies and skillful treatment the death might have been prevented."
26 In view of above facts and circumstances, when there is ample evidence against the appellant and on perusal of impugned judgment, when it is confirmed that the trial Court has taken care of entire evidence in proper manner and discussed all issues before confirming conviction, I do not see any reason to interfere with such judgment. Hence, the appeal is meritless and it is dismissed.
R & P be sent back to the concerned
trial Court forthwith.
(S.G.SHAH, J.)
* Pansala.
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