Gujarat High Court
Mohammadbhai Valibhai Agariya & 6 vs State Of ... on 9 September, 2016
Author: Harsha Devani
Bench: Harsha Devani, G.R.Udhwani
R/CR.A/441/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 441 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
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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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MOHAMMADBHAI VALIBHAI AGARIYA & 6....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR JK PARMAR, ADVOCATE for the Appellant(s) No. 4 - 5 , 7
MR VIRAT G POPAT, ADVOCATE for the Appellant(s) No. 1 - 3 , 6
MR. MITESH AMIN, PUBLIC PROSECUTOR for the opponents/respondents
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 9 /09/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE G.R.UDHWANI) Page 1 of 66 HC-NIC Page 1 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT
1. The judgement and order dated 21.1.2014 passed by the learned 6th (Ad hoc) Additional Sessions Judge and Special Judge (Atrocity)), Veraval, District Junagadh, in Atrocity Sessions Case No. 33 of 2006 convicting the appellants - original accused for the offence punishable under sections 302, 326, 325, 120B, 324, 143, 147, 148, 149, 323, 504, 506(2) and 447 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC" for short) and section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as "the Atrocity Act" for short) as also sentencing them to suffer incarceration for the offences punishable under sections 143, 147, 148, 302 of the IPC and under section 3(2)(v) of the Atrocity Act, is assailed in this appeal under section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr. P.C.").
2. By the impugned judgement and order, each of the appellants was ordered to suffer rigorous imprisonment of six months for the offence under section 143, two years for the offence under section 147, three years for the offence under section 148 of the IPC. For each of the said offence, each of the appellants was fined a sum of Rs. 500/- and was also imposed a sentence of simple imprisonment of two days in default of payment of fine. For each of the offence punishable under section 302 of the IPC and under section 3(2)(v) of the Atrocity Act, each of the appellants was sentenced to suffer rigorous imprisonment for life and a fine of Rs. 5000/- and in default of the payment of fine, a further simple imprisonment of six months for each of the above two offences came to be imposed upon the appellants. Considering the above sentences, the trial court refrained from imposing separate Page 2 of 66 HC-NIC Page 2 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT sentences for the offences punishable under sections 323, 324, 325, 326, 120B, 447, 504, 506(2) of the I.P.C.
3. Set off under section 428 of the Cr. P.C., was given to the appellants and all the sentences were ordered to run concurrently.
FACTS EMERGING FROM FIR:
4. An FIR Exh. 64 came to be lodged by one Deepakbhai Bhikhabhai Chandapa, PW-15, Exh. 63, with Prabhas Patan Police Station (Camp) at Veraval, on 9.8.2006 which came to be registered as First Crime Registration No. 11 of 2006 stating therein, inter alia, that he was the resident of village Dhari of Veraval and that his uncle Mulabhai Sajanbhai Chandapa (deceased herein) and his brother Ramabhai Sajanbhai Chandapa were occupants of a piece of land they had encroached upon since long and were using the same for agricultural purposes and were also residing on the very same land with their families. That Muslims of the village, namely, Nura Vali and his brothers Ishaqbhai Aminbhai and Hanifbhai Aminbhai with an intention to grab the said piece of land from the two brothers used to frequently harass them as also the complainant who was also occupant of other piece of land by encroachment. Earlier also a complaint was given by Mulabhai Sajanbhai in the police station.
5. It was further stated in the FIR that on 9.8.2006 the complainant along with Mulabhai Sajanbhai had left on the Splendor Motorcycle for shopping towards Veraval and at about 10.15 a.m., they were accosted near Do-bhai Dargah by Page 3 of 66 HC-NIC Page 3 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT accused Hanif Amin, Nura Vali, Mehmood Vali, brother of Nura Vali, Ibru and Ishaq Amin and made utterances in derogation of their caste and asked them to vacate the land and quit the village. It is stated in the FIR that the accused aforestated told Mulabhai Sajanbhai that he will be done to death "today". The complainant went on to state in the complaint that accused Hanif possessed hoe and each of the accused, Nura Vali and Ishaq Amin possessed axe and Mehmoodvali and Ibru respectively possessed iron pipe and stick and all of them started assaulting Mulabhai Sajanbhai at random with their respective weapons and accused Hanif gave two slaps to the complainant warning him to stay away else would meet with the same fate as Mulabhai Sajanbhai. It is stated in the FIR that Mulabhai Sajanbhai screamed for help whereupon Ramabhai Sajanbhai (his brother), his sister-in-law Somiben (Ramabhai's wife), and his nephew Rajubhai (son of Ramabhai), Shobhana (daughter of Rambhai) and Maniben , wife of Mulabhai Sajanbhai, rushed to the scene of offence. It is stated in the FIR that when all of them including the complainant intervened to rescue Mulabhai Sajanbhai, 15 aides of accused Hanif Amin and Nura Vali came running from the factory side and started assaulting Ramabhai Sajanbhai, Mulabhai Sajanbhai, Somiben, Maniben and the complainant slipped from the place to call help from his community fellows and returned with Babu Hamir, Anuben Ramabhai, Gagi Babu and Dhiru Babu whereupon the assailant fled and in the meanwhile, somebody having informed the police about the incident, the police came there and shifted Mulabhai Sajanbhai and Maniben Mulabhai to the Government Hospital in the police van accompanied by Babu Hamir. Ramabhai Sajanbhai, Rajubhai Ramabhai and Somiben, wife of Ramabhai Sajanbhai were also rushed to the Page 4 of 66 HC-NIC Page 4 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Government Hospital at Veraval in another police van. The complainant went to the police station and after finding that the police had reached Dhari village, went to the Veraval Government Hospital.
6. Upon the aforesaid complaint, the case was investigated and having found sufficient material for trial of the accused (appellants herein), chargesheet was filed in the court of the learned Additional Chief Judicial Magistrate, Veraval and the case was, after following necessary procedures, committed to the court of Sessions, Veraval and came to be registered as Special Case No. 33 of 2006 (Atrocity). Charge was framed and explained to the accused and their statements were recorded under section 229 of the Cr. P.C. and the accused having preferred trial rather than pleading guilty to the charge, were tried and convicted and sentenced as above.
7. To prove the case as pleaded in the FIR aforestated, the prosecution adduced the following oral as well as documentary evidences:
(A) Oral Evidences :-
Sr.
Name of Witness Exhibit
No.
1 Babubhai Hamirbhai Chandpa - (Panch Witness) 13
2 Abdul Razak - (Panch Witness) 23
3 Ashwin Jagjivan - (Panch Witness) 25
4 Hasan Gani Panja - (Panch Witness) 26
5 Niranjan Jamnadas Bhoi - (Panch Witness) 28
6 Anwarbhai Hussainbhai Saiyed - (Panch Witness) 29
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7 Iqbal Mohammedbhai - (Panch Witness) 31
8 Altaf Rehman Turk - (Panch Witness) 33
9 Bachubhai Pithabhai - (Panch Witness) 34
10 Bhimbhai Sidibhai - (Panch Witness) 36
11 Maganbhai Ghanshyambhai - (Panch Witness) 37
12 Kulin Ramniklal Vyas 39
13 Dr. Arjun Gorabhai Rathod 51
14 Dhansukhbhai Govindbhai Solanki 57
15 Dipakbhai Bhikhabhai Chandpa - (Complainant) 63
16 Sobhnaben Ramabhai Arjanbhai 65
17 Maniben wf/o. Mulabhai Chandpa 66
18 Somiben Rambhai 68
19 Rajubhai Ramabhai 69
20 Rambhai Sajanbhai 70
21 Kishan Haja Chandpa 76
22 Chandubhai Muljibhai Chandpa 77
23 Gagiben wf/o. Babubhai 78
24 Jamalbhai Hasanbhai 79
Ketanbhai Parshotambhai Jadav - (Police
25 80
Witness)
26 Prafulbhai Danabhai - (Police Witness) 81
27 Jentibhai Kadvabhai - (Police Witness) 83
28 Lagdhirsinh Takhubhai Solanki - (Police Witness) 84
29 Kailashbapu Himmatlal Pandya - (Police Witness) 86
30 Valabhai Ganeshbhai - (Police Witness) 87
Talshibhai Manjibhai Dholakiya - (Police
31 93
Witness)
32 Tersinhbhai Varsingbhai - ( Investigating Officer) 100
(B) Documentary Evidences :-
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Sr.
Details of the Document Exhibit
No.
1 Panchnama of the scene of incident. 14
2 Panchnama about seizure of muddamal clothes. 24
3 Discovery Panchnama 27
Panchnama showing the place where the conspiracy 4 30 was hatched.
Panchnama about the seizure of the muddamal 5 32, 38 clothes of the accused persons.
6 Arrest Panchnama of the accused Ishak Amin. 35 7 Letter about performing P.M. 40 8 Police Report sent for Post mortem examination. 41 9 Post Mortem note of the deceased Mula Sajan. 42 Medical Certificate of injury of the witness - 10 43, 54 Maniben.
Medical Certificate of injury of the witness - Raju 11 44, 53 Rama.
Medical Certificate of injury of the witness - 12 45, 58 Somiben.
Medical Certificate of injury of the witness - Rama 13 46, 55 Sajan.
Medical Certificate of injury of the accused - Nura 14 47, 52 Vali 15 Original Complaint 64 16 Copy of the abstract of Police Station Diary 85, 91 17 Fax Message about the offence sent by P.S.O. 88 18 Letter written to lodge the complaint. 89 19 Abstract of F.I.R. 90 20 Special Report of the offence. 92 21 Letter written to Exe. Magistrate to fill the Inquest. 94 22 Copy of the F.I.R. of C.R. no. I - 88 / 06. 95 23 Letter written to give date and time for the 101 Page 7 of 66 HC-NIC Page 7 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Identification Parade.
24 Copy of the Station Diary of dt. 15-08-06 102Letter written to send child accused in the Juvenile 25 103 Court.
26 School Leaving Certificate of Hasan Suleman. 104 27 Letter written to add the section. 105 28 Report of the Investigation Van of F.S.L. 106 29 Report of the Investigation Van of F.S.L. 107 Letter written for the opinion after examining the 30 108 muddamal.
31 Muddamal Dispatch Note. 109Letter of sending muddamal clothes from the 32 110 hospital.
Letter of sending muddamal clothes from the 33 111 hospital.
34 Letter of F.S.L. for sending the Analysis Report 112 35 Letter written to give the opinion of Analysis. 113 Letter written for the examination of muddamal of 36 114 F.S.L. 37 Analysis Report of F.S.L. 115 38 Letter of F.S.L. for sending Serological Report. 116 39 Serological Report of F.S.L. 117 40 Letter about taking blood samples of the witnesses. 118 41 Copy of the Partnership Deed. 119 Certificate about Electric connection of village 42 120 Dhari Village Panchayat.
Copy of the Order of Non - Agriculture of District 43 121 Panchayat, Junagadh.
Copy of the Schedule containing conditions of 44 122 Junagadh District Panchayat 45 Copy of Sale Deed. 123 46 Letter written by Mulabhai to take legal steps. 124 Page 8 of 66 HC-NIC Page 8 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Copy of the Notification about prohibition to keep 47 125 arms.
48 Map of the place of incident. 126(C) Documentary Evidences exhibited with the consent on behalf of the accused persons. :-
Sr. Details of the Document Exhibit No. 1 Inquest Panchnama 15 Panchnama of the seizure of the clothes put on by the 2 16 witness at the time of incident.
3 Arrest Panchnamas of the accused persons. 17, 18 Panchnama of the Identification Parade of the accused 4 19 persons.
5 Panchnama of the seizure of muddamal clothes. 20 6 Panchnama for collecting the blood samples. 21 7 Arrest Panchnama of the accuse Nura Valibhai. 22 8 Schedule Caste certificate of Maniben Mulabhai. 71 9 Schedule Caste certificate of Rajubhai Ramabhai. 72 10 Schedule Caste certificate of Somiben Ramabhai. 73 11 Schedule Caste certificate of Ramabhai Sajanbhai. 74 12 Schedule Caste certificate of Dipak Bhikhabhai. 75 CONTENTIONS RAISED BY APPELLANTS:
8. It was contended by Mr. Popat, learned advocate for the appellants No. 1, 2, 3 and 6 that the genesis of the incident in question came to be suppressed and the actual manner and the method of the occurrence of the incident was not brought Page 9 of 66 HC-NIC Page 9 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT on record. The learned counsel for the appellants referred to the testimony of investigationg Officer, Tehrsinhbhai Varsinhbhai, PW-32 and submitted that the so-called incriminating material was found from three to four different places evidencing occurrence at different places and in absence of explanation of this circumstance, the genesis of the incident was suppressed on this count as well. It was next argued that the witnesses are closely related to the deceased and have given the evidence only to suit the prosecution case and at the same time have suppressed the vital evidence which, if tendered, would have thrown light on the actual manner and the method of the occurrence. Referring to the testimony of Medical Officer, PW-12, Exh. 39, Dr. Kulinbhai Ramniklal Vyas as well as the Medical Certificate relating to accused Nura Vali as also other witnesses as also the evidence of Investigating Officer Tehrsinhbhai Varsinhbhai PW-32 Exh.
100, it was contended that as conceded by the said witnesses, accused Nura Vali received serious head injuries in the very same incident; however, the said fact was not investigated nor the injuries on the person of accused Nura Vali were explained by the investigating agency/prosecution. It was argued that non-explanation of the injuries on the person of accused Nura Vali would render the case of the prosecution doubtful and the accused are, thus, entitled to the benefit of doubt. It was argued that not only the injuries were serious in nature but the witnesses were interested and/or inimical witnesses inasmuch as concededly, there existed enmity between the two sides with regard to a piece of land on which the complainant's side had made encroachment. It was contended that the witnesses being interested and inimical, a heavy burden lay upon the prosecution to explain the injuries on the person of accused Page 10 of 66 HC-NIC Page 10 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Nura Vali.
8.1 For the consequences of non-explanation of the injuries on the person of accused, reliance is placed upon the following decisions:
1. State of Rajasthan v. Madho and another [AIR 1991 SC 1065]
2. Dwarka Prasad v. State of U.P. [ 1993 Supp (3) SCC 141]
3. The State of Gujarat v. Bai Fatima and another [AIR 1975 SC 1478]
4. Lakshmi Singh and others v. State of Bihar [AIR 1976 SC 2263]
5. Onkarnath Singh and others v. The State of U.P. [ (1975) 3 SCC 276]
6. Takhaji Hiraji v. Thakore Kubersing Chamansing and others [(2001) 6 SCC 145]
7. Dashrath Singh v. State of U.P. [(2004) 7 SCC 408]
8. Rehmat v. State of Haryana [Criminal Appeal No. 178 of 1989; 179 of 1989; decided on September 3, 1996 {1996(0) GLHEL-SC 24159} = AIR 1997 SC 1526]
9. Patel Bachubhai Bhurabhai and another v. (The) State of Gujarat [1984 G.L.H. 1155]
10. Satish @ Maurya Ramubhai Patel v. State of Gujarat [ Criminal Appeal No. 246 of 2007 and allied matters decided on December 16, 2009 = (2010) 24 GHJ 35] Page 11 of 66 HC-NIC Page 11 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT 8.2. It was argued that in absence of the explanation of the injuries caused to accused Nura Vali by prosecution, the explanation tendered by the accused, more particularly, accused Nura Vali, during his questioning under section 313 of the Cr. P.C. pointing out the manner in which he was assaulted on the head by the deceased and thereupon gathering of 10 to 15 other persons from the nearby locality and their assaulting the deceased and other injured witnesses is more probable than the prosecution version, particularly when the presence of 20 to 25 other assailants has been admitted by the complainant, PW-15.
8.3 It was contended that none of the witnesses disclosed the names of the assailants either to the police or to the Medical Officer, promptly, at the first available opportunity. It was argued that in absence of such prompt disclosure, in a case where the parties had pre-existing dispute, the possibility of false implication of the accused cannot be ruled out. It was also argued, while inviting the attention of this court to State of Gujarat v. Hasmukh @ Bhikha Gova Harijan [37(1) GLR 292] that it was incumbent upon the Medical Officer to enquire with the injured / relatives of the deceased, the names and other details of the assailants and record the same in the medical history given to him by them. It was argued that Maniben despite knowing the accused, refrained naming them in the first instance and named them only at a subsequent stage under the pretext that she was under the threat; such threat having not been disclosed to the police at any point of time.
Page 12 of 66HC-NIC Page 12 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT 8.4. Relying upon the testimony of PW-15, Deepakbhai Bhikabhai Chandapa, the learned counsel for the appellant would contend that it was the case of a free fight between two groups and, therefore, even if this court were to record the concurrence with the findings rendered by the court below, the case would fall in Exception 4 to section 300 of the IPC. It was argued that the evidence on record would show that the incident took place all of a sudden and therefore, section 149 of the IPC was not invocable.
8.5 Referring to the testimonies of Shobhanaben Ramabhai, PW-16; Maniben, wife of deceased Mulabhai Sajanbhai, PW-17; Somiben Ramabhai, PW-18; Ramabhai Sajanbhai, PW-20; it was contended that none of the witnesses were eye witnesses and that apart, the conduct of Maniben, wife of deceased Mulabhai Sajanbhai, going in hiding even after noticing her husband being assaulted mercilessly was quite unnatural raising doubt about her presence at the scene of offence or having seen the incident. It was argued that the witness attributed her being dragged out of the house to the accused but made a vital omission in that context in her statement under section 161 of the Cr. P.C. It was argued that Somiben Ramabhai, PW-18, having omitted the factum as to the manner of causation of injuries to her in her statement under section 161 of the Cr. P.C., was not a reliable witness.
8.6 Referring to the testimony of Ramabhai Sajanbhai, PW-20, it was argued that in view of the vital omission brought out in the cross-examination of this witness in paragraph No. 11, no reliance can be placed upon his testimony. In further reference to his testimony, the learned counsel for the Page 13 of 66 HC-NIC Page 13 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT appellants contended that concededly, the incident had occurred at few different places and therefore, a question arose as to how he could have been present at all the different places and this witness was not an eye witness to the incident. It was argued that he does not know the names of the accused and therefore, it is doubtful as to how he could have verified the accused if they had run away immediately after occurrence as contended by him.
8.7 It was contended, while referring to the testimony of the Investigating Officer, Tehrsinhbhai Varsinhbhai, PW-32, that the so-called discovery of various articles allegedly possessed by all the accused, only through one of the accused Mohmmadali Ibrahim cannot be considered as discovery and therefore, such discovery cannot be attributed to accused persons. It was argued that accused Nura Vali was immobilized by serious head injuries and had to be shifted to the hospital and thereafter was immediately arrested leaving no room for him to carry and hide the weapon of offence and therefore, the discovery attributed to him was a mere farce. It was argued that the weapon allegedly used by accused Nura Vali was not found and therefore, his alleged act of assault by the weapon was not corroborated.
8.8 Assailing the testimony of Forest Guard, Chandapa Kishan Haja, PW-21, as also while referring to the testimony of Investigating Officer, Tehrsinhbhai Varsinhbhai, PW-32, it was argued that one Isa @ Ishaq Amin Katariya was arraigned as one of the accused in respect of whom, a report under section 169 of the Cr. P.C., was filed in the court of Judicial Magistrate First Class on 17.8.2006 and later on another Isa @ Ishaq Amin Page 14 of 66 HC-NIC Page 14 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Katariya came to be arraigned as accused No. 7. However, Chandapa Kishan Haja, PW-21, who was not taken for identification parade of accused No. 7, made a wrong identification of accused No. 7 and thus, was not a reliable witness.
8.9 It was argued that no immediate FIR came to be registered by the police in respect of the offence in question and thus, a time was allowed to the complainant to manipulate the facts.
8.10. The above arguments advanced by Mr. Popat have been adopted by other learned counsel appearing for other appellants.
9. As against that, Mr. Mitesh Amin, learned Public Prosecutor, while urging this court to sustain the conviction of the appellants, would contend that an unimpeachable trustworthy and reliable evidence with necessary corroboration came to be tendered before the court below, which established the case against the appellants beyond reasonable doubt and the appellants, to discard the prosecution evidence, were obliged to tender an evidence competing with the prosecution evidence, in absence of which, the lack of explanation as regards the injuries on the person of accused Nura Vali was not fatal to the prosecution case. The learned Public Prosecutor placed reliances upon the decision in the case of Lakshmi Singh (supra) in respect of the above contention.
9.1 While referring to the FIR lodged by accused Mohammadbhai Valibhai who is brother of accused Nura Vali;
Page 15 of 66HC-NIC Page 15 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Exh. 95, it was contended that time and place of the occurrence in the said FIR and the FIR lodged by Deepakbhai Bhikhabhai PW-15 were the same and in order to tender a version competing with the version of the prosecution, the accused were obligated to put the version as contained in the FIR, Exh. 95, to the witnesses, more particularly, to injured witness Rama Sajan, in absence whereof the case of the defence cannot be said to have been probabilised and therefore, it was not open for them to raise a plea of non- explanation of injuries on the person of accused Nura Vali.
9.2 Referring to the statement of accused Nura Vali under section 313 of the Cr. P.C., it was contended that the explanation tendered by him was contrary to the FIR Exh. 95 and that the version given by him under section 313 of the Cr. P.C. was improbabilized by the factum of his being in unconscious state making it impossible for him to see coming of about fifteen persons from nearby village to assault the deceased Mulabhai Sajanbhai after the deceased assaulted accused Nura Vali as contended by accused Nura Vali. It was argued that, that apart, had those facts been correct, accused Nura Vali would have been in a position to recognize the fifteen assailants and could have revealed their names or details. It was argued that the aforesaid case as pleaded by accused Nura Vali in his statement under section 313 of the Cr. P.C. would not probabilize the said defence in absence of the same being put to the witnesses in their cross-examination or being substantiated through other independent witnesses.
9.3 As regards, non-registration of the FIR against the appellants immediately after the occurrence, the learned Page 16 of 66 HC-NIC Page 16 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Public Prosecutor, while drawing the attention of this court to the explanation tendered by the Investigating Officer, Tehrsinhbhai Varsinhbhai, PW-32, would contend that the incident had occurred at 10 o'clock wherein Mulabhai Sajanbhai had died and injured witnesses were admitted initially to the hospital at Veraval and thereafter, shifted to Rajkot. The witnesses were in grief on account of the death of the leader of their family which justified the non-disclosure of each and every minute details in their statements recorded by the police and that under such circumstances and other circumstances, as narrated by Deepakbhai Bhikhabhai Chandapa, PW-15, lodgement of the FIR within seven to eight hours of the incident in question was justified and that there was no inordinate delay in lodging the same.
9.4. Defending the testimony of Forest Guard, Chandapa Kishan Haja, PW-21, it was argued that this witness is an independent witness and employed in the Forest Department whose duty was to patrol the area in question and thus, his presence near the scene of offence was natural and truthfulness or trustworthiness of this witness is evident from his testimony even as he exonerated one Ishaq Katariya. It was argued that a witness with an intention of false implication of the accused, would not exonerate any of the person named as accused and thus, such conduct of the witness would lend crederence to his testimony.
9.5. Referring to the testimony of the Investigating Officer, Tehrsinhbhai Varsinhbhai, PW-32, the learned Public Prosecutor would contend that without wasting any time immediately on lodgement of the FIR, the Investigating Officer Page 17 of 66 HC-NIC Page 17 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT moved in action and collected various articles through panchnama by 6.30 p.m. Referring to the scientific evidence, the learned Public Prosecutor would contend that taints of blood group "O" being that of victim Rajubhai and Ramabhai were found on the clothes of accused Ibrahimbhai suggesting his presence and participation in the offence in question. Referring to the medical evidence, the learned Public Prosecutor would contend that four injuries were inflicted on Maniben, PW-17; Rajubhai Ramabhai, PW-19; Ramabhai Sajanbhai, PW-20 and ten injuries were inflicted on deceased Mulabhai Sajanbhai which evidences the intention of the accused to kill the deceased and to immobilize other witnesses by injuries so as to prevent the deceased being rescued by them.
10. Before appreciating the evidence on record, it would be beneficial to refer to the proposition of law emerging from the case law relied upon by the learned counsel for the appellants in support of the contention that the suppression of the origin of the incident must result into the benefit of doubt going to the accused-appellants.
10.1 In Lakshmi Singh (supra), the consequences of non-explanation of the injuries sustained by the accused at the time of occurrence or in the course of altercation were spelt out in paragraph No. 11 (at page No. 2269) thus:
"(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2) That the witnesses who have denied the presence Page 18 of 66 HC-NIC Page 18 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The court further observed:
"The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." .................there may be cases where the non- explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries......."
(emphasis supplied) 10.2 Similarly, in Dwarka Prasad (supra), the Supreme Court in paragraph Nos. 12, 13 and 14 held as under:
"12. From time to time this Court has pointed out that merely because some injuries are found on the Page 19 of 66 HC-NIC Page 19 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT accused, which have not been explained by the prosecution, by itself shall not be a ground for rejecting the whole prosecution case. It will depend on facts of each case what inference should be drawn by the Court. In the case of The State of Gujarat v. Bai Fatima, AIR 1975 SC 1478, it was said that when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow : (SCC p. 13, para 17) "(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all."
A three-Judge Bench in yet another case of Bhaba Nanda Sarma v. The State of Assam, AIR 1977 SC 2252, said: (SCC p. 399, para 2) "The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused."
Page 20 of 66HC-NIC Page 20 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT In the case of Hare Krishna Singh v. State of Bihar, AIR 1988 SC 863, it was said: (SCC p. 105, para 18) ".........If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused."
But in the case of State of Rajasthan v. Madho, AIR 1991 SC 1065, it was held: (SCC p. 399, para 2) "If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident......"
"13. At first impression there appears to be some conflict in the views expressed in the different judgments of this Court referred to above. But on Page 21 of 66 HC-NIC Page 21 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT proper reading with reference to the facts of each case, there is no basic difference and according to us this Court rightly in the case of The State of Gujarat v. Bai Fatima (supra) put in three categories the result which may follow from the facts of each case. It is well-known that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution. In other case the injuries being superficial, by themselves may not affect the prosecution case; the version disclosed by the prosecution having been proved by witnesses who are independent, reliable and trustworthy, supported by the circumstances of that particular case, including the promptness with which the first information report was lodged on behalf of the prosecution. But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay; the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation, then in that situation, injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted.Page 22 of 66
HC-NIC Page 22 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT (emphasis supplied) 10.3 In Onkarnath Singh (supra), the Apex Court in paragraph Nos. 35 and 36, held thus:
"35. ......... This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused (see Bankey Lal v. State of U.P.) (supra) and Bhagwan Tana Patil v. State of Maharashtra Criminal Appeal 78 of 1970 decided on 9-10-73.
36. - Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise their evidence with care. ............"
(emphasis supplied) 10.4. In Dashrath Singh (supra), the Apex Court in paragraph No. 19, held as follows:
"The injuries of serious nature received by the accused in the course of the same occurrence would indicate that there was a fight between both the parties. In such a situation, the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the first attack Page 23 of 66 HC-NIC Page 23 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT assumes great importance in reaching the ultimate decision. It is here the need to explain the injuries of serious nature received by the accused in the course of same occurrence arises. When explanation is given, the correctness of the explanation is liable to be tested. If there is an omission to explain, it may lead to the inference that the prosecution has suppressed some of the relevant details concerning the incident. The Court has then to consider whether such omission casts a reasonable doubt on the entire prosecution story or it will have any effect on the other reliable evidence available having bearing on the origin of the incident. Ultimately, the factum of non- explanation of injuries is one circumstance which has to be kept in view while appreciating the evidence of prosecution witnesses. In case the prosecution version is sought to be proved by partisan or interested witnesses, the non- explanation of serious injuries may prima facie make a dent on the credibility of their evidence. So also where the defence version accords with probabilities to such an extent that it is difficult to predicate which version is true, then, the factum of non-explanation of the Page 24 of 66 HC-NIC Page 24 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT injuries assumes greater importance. Much depends on the quality of the evidence adduced by the prosecution and it is from that angle, the weight to be attached to the aspect of non-explanation of the injuries should be considered. The decisions above cited would make it clear that there cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of non-explanation of injuries. In other words, the non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version."
(emphasis supplied) 10.5. In Patel Bachubhai Bhurabhai (supra), after referring to the decision in the case of Lakshmi Singh (supra), it was held in paragraph Nos. 16 and 17 as under:
"16. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.Page 25 of 66
HC-NIC Page 25 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT
17. There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far out Weighs the effect of the omission on the part of the prosecution to explain the injuries (AIR 1975 SC 1478 relied upon)"
(emphasis supplied) 10.6 In Satish @ Maurya Ramubhai Patel (supra), this court in paragraph No. 22 held thus:
"Apart from the above discrepancies in the evidence of the four eye-witnesses, one major aspect that requires to be considered is that none of these four eye-witnesses speak anything about any injury sustained by accused No.1, Manoj. The injury suffered by accused No.1 was of a serious nature and he must have bled profusely therefrom.
Differently put, the injury was not of such a nature, which would have gone unnoticed by all the eye-
witnesses. But, surprisingly, none of them account for the injury suffered by accused No.1 nor do they have any explanation to offer in this regard except Page 26 of 66 HC-NIC Page 26 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Sumanben saying that he may have received injury at the hands of accused No.2 in the incident. This non-explanation of injury on the part of accused No.1 would also indicate that the prosecution and its witnesses are trying to hide some material fact from the court or may be that they are trying to cover up the true facts. The genesis of the incident, therefore, becomes a matter of doubt. The evidence of eye-
witnesses cannot be considered as truthful and trustworthy."
(emphasis supplied)
11. The principles as regards non-explanation of injuries by prosecution, on the person of the accused in the same incident and at or around the same time of the incident, emerging from the pronouncements above referred can be summarized thus:
1. The non-explanation of injuries on the person of the accused by the prosecution would not necessarily render its case doubtful; it is, however, one of the factors, the Court would keep in view while scrutinizing the evidence of prosecution witnesses.
2. The suppression of serious injuries may raise a doubt in the mind of the court as to whether the genesis and origin of the occurrence is suppressed and true version is not placed before the court or Page 27 of 66 HC-NIC Page 27 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT whether the witnesses are telling a lie on the most material point. In such a case, the court would closely scrutinize the evidence of the prosecution witnesses to clear the doubt as to suppression of the genesis and origin of the occurrence or the witnesses being untruthful.
3. The suppression or omission to explain injuries of the serious nature on the person of the accused would assume greater importance, if the witnesses are interested or inimical or where the defence version competes in probability with that of the prosecution.
4. When the injuries of serious nature are found on the person of the accused, the question which may arise is as to whether there was a fight between the two parties and who amongst the two was aggressor?
5. The question also may arise as to which party was defending and whether the accused exercised the right of private defence?
11.1 All such questions and other similar such questions can be answered by closely scrutinizing the evidence of the witnesses and the quality of the probable version advanced by the accused. If despite non-explanation of serious injuries on the person of the accused, evidence of the witnesses is found to be of sterling quality i.e. clear and cogent, independent and disinterested, consistent and credit-worthy, to an extent that it outweighs the effect of the said omission, the prosecution case Page 28 of 66 HC-NIC Page 28 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT cannot be thrown overboard on the mere ground of non-
explanation of the injuries of serious nature on the person of the accused. However, non-explanation of superficial or simple injuries on the person of the accused would not assume any importance, unless the conduct of the witnesses is otherwise doubtful. In short, in a case where the injuries of serious nature on the person of the accused remain unexplained, what will matter is the quality of the evidence, with the help of which the prosecution may clear the doubts arising in the mind of the court on account of non-explanation of the said injuries on the person of the accused.
12. Reverting to the facts of the present case, it is not in dispute and there cannot be any, that a serious head injury on the person of accused-Nura had occurred in the selfsame incident. The witnesses have not been able to explain the injury of serious nature on the person of accused-Nura. Thus, applying the principle emerging from the pronouncements discussed above, it needs to be examined as to whether there was inter-se fight; who was aggressor; whether genesis of offence is suppressed; whether version given by the witnesses is unreliable; whether the omission to explain injuries on accused casts a reasonable doubt on entire prosecution story.
12.1 PW-17, Maniben, is the wife of deceased Mulabhai Sajanbhai. PW-18, Somiben Ramabhai, is the sister-in-law of the deceased. PW-20, Ramabhai Sajanbhai, is the brother of the deceased. PW-19, Rajubhai Ramabhai is son of PW-18 and nephew of deceased Mulabhai Sajanbhai and PW-17 Maniben. PW-17, PW-18, PW-19 and PW-20 are four injured witnesses. PW-16, Shobhanaben, is the daughter of Ramabhai and niece Page 29 of 66 HC-NIC Page 29 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT of deceased Mulabhai and PW-17 Maniben. Likewise, PW-22 Chandubhai is son of deceased Mulabhai and PW-17 Maniben. ` 12.2 This Court has set out the nature of relations between the deceased-Mula Sajan and various witnesses as above. Most of the witnesses who are said to have rushed to the scene of offence after deceased-Mula Sajan gave a call for help, are related to him by blood. It is also borne out from the record that there had been a dispute about the land belonging to the government, occupied by deceased- Mula Sajan and other witnesses. In fact, the accused are alleged to have assaulted the deceased and other witnesses so as to compel them to vacate the land so that the accused can take over the possession thereof. Therefore, while appreciating the evidence of the witnesses, the possibility of the witnesses being interested in giving untrue and exaggerated version and being inimical to the accused is required to be borne in mind.
12.3. PW-15 is also a distant relative of the deceased and other witnesses. He is a hostile witness. He was the only person present at the scene of the offence alongwith the deceased at the inception of the incident. He had a common cause as that of the deceased and his family members who are witnesses herein to be inimical to the accused, inasmuch as he had come out with the case in the FIR that the accused had been harassing him also for the purpose of deprivation of certain piece of land in his occupancy. Some of the material particulars stated by other witnesses, corroborated by PW 15 in his examination-in-chief are (01) his being acquainted with deceased-Mula Sajan and witness-Rama Sajan (02) their unauthorized occupancy of the land in question (03) working of Page 30 of 66 HC-NIC Page 30 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT the accused in the factory (04) the quarrel between deceased- Mula Sajan and the accused, a day prior to the incident in question (05) his being called by Mulabhai (06) his riding deceased-Mula on the splendor motor cycle for proceeding to Veraval (07) the presence of the accused near the gate of the factory on the date and time of incident and, (08) stopping of the motorcycle by accused.
12.4 It is stated by this witness that after the motorcycle was stopped as above, there was a fight between the accused and deceased in continuation of the quarrel, which had taken place on the previous day.
12.5 Another significant fact emerging from the cross- examination of this witness made by accused is that none of the witnesses possessed any weapon. He also disowns the contents of the FIR other than deposed to by him in the examination-in-chief. He also confirms the fact that Maniben had not come to the scene of offence and that she was not assaulted. The defence version that owing to enmity, Mula Sajan and his aides etc., had been to his factory to assault Nura Vali and caused serious injuries to his person and that, thereafter 20 or 25 person came from Dhari Village and assaulted Mula Sajan and Rama Sajan and other persons who had accompanied them has been denied by this witness. Significant aspect which can be noticed from his testimony is that though he admits the existence of villagers from Dhari Village, he disputes their participation in the incident in question.
12.6. PW-15, however, does not give a clear evidence in Page 31 of 66 HC-NIC Page 31 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT favour of the prosecution except to an extent that the deceased and himself were accosted by the accused and that the accused at that time were armed with deadly weapons. It is his case in the examination-in-chief that after being accosted, there was a free fight between the accused who were more in number and the deceased who was accompanied by the complainant. PW-15 does not state who amongst the two parties were aggressors and as to whether accused Nura Vali was assaulted first by the deceased and whether the accused retaliated to such an assault or whether the accused assaulted the deceased first and the deceased acted in self defence and caused injury to accused Nura Vali. It is required to be noted that it is not the prosecution case that other witnesses were present at the inception of the incident in the aforesaid manner. Therefore, the only person who could have explained as to what actually happened at the inception of the incident was PW-15, the complainant, who has unfortunately, turned hostile. That apart, PW-15 has contradicted himself in the cross-examination by stating that the free fight between the accused and the deceased was one sided i.e. from the side of the accused as against his version in the examination-in-chief that it was a free fight between them.
12.7. The witnesses, more particularly, PW-16, PW-17, PW-18, PW-19 and PW-20 bear testimony to the subsisting dispute with the accused with regard to the land encroached upon by deceased Mulabhai Sajanbhai and others. They bear testimony to the fact that about two months prior to the incident, accused Nura Vali and his brothers and others had threatened the deceased to vacate the said piece of land whereupon deceased Mulabhai made a complaint to Prabhas Page 32 of 66 HC-NIC Page 32 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Patan Police Station. The said threat was reiterated by accused on the preceding night of the incident in question whereupon PW-22, Chandubhai, abandoned the house for fear of his life, at the hands of the accused. It is consistently deposed by the above witnesses that owing to the threat on the preceding night, deceased Mulabhai and PW-17, Maniben, approached PW-20, Ramabhai Sajanbhai for help and it was ultimately decided to lodge the complaint in Prabhas Patan Police Station on the next day as it was not possible to go to the police station on the very night as it was raining.
12.8. It is borne out from the testimony of PW-17, Maniben, that on the date of the incident at about 8.00 a.m., PW-15 Deepakbhai Bhikhabhai Chandapa had come to her house and that her husband requested him to help him to ride the motorcycle as he was physically handicapped and in absence of his son Chandubhai, his (complainant's) help was needed for the purpose of registering a police complaint. The fact that a request was made by deceased Mulabhai to Deepakbhai, PW-15, to ride the motorcycle for him, is corroborated by PW-15 in his testimony, though he has been declared hostile.
12.9. Before further appreciating the evidence on record and the rival contentions, it would be beneficial to refer to the topography of the scene of offence and its surroundings as documentized in the panchnama Exh. 14 as deposed by PW- 21, Chandapa Kishen Haja, Forest Guard. It is seen from the panchnama that towards the north of the spot where dead body of deceased Mulabhai Sajanbhai was lying, houses of the deceased and other injured witnesses are situated and towards Page 33 of 66 HC-NIC Page 33 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT south after leaving about 200 feet of open land, a mosque known as "Do-bhai" (two brothers) Dargah is situated and towards west there is a sea as also the factory where construction work was being done under the contract of accused Nura Vali, with other accused doing masonry work, is situated. At a distance of 160 feet towards south, shoes of the deceased and a wooden log were found and at a further distance of 150 feet west, wooden log and blood stained earth were found at a place where Ramabhai, PW-20 and Somiben, PW-18 fell injured. At a distance of about 300 ft. towards the west on the southern corner, somewhere near the factory dead body of Mulabhai Sajanbhai near the blood stained earth was found. Thus, it can be noticed from the panchnama that the incriminating evidence was found from three different places.
12.10. Keeping in view the above topography and the facts, the evidence of the witnesses is required to be appreciated further.
12.11. In absence of the case of the defence to the contrary, it would appear from the above topography that the scene of offence was at a viewable distance from the house of the deceased. PW-16, Shobhanaben, claims to have heard the calls of her uncle for help whereupon she hid herself in the house. Then followed the calls of her parents and also of her brother Rajubhai. Hearing of such calls is corroborated by the other witnesses being PW-17, PW-18, PW-19, PW-20 and PW-
21. 12.12 PW-16 Shobhanaben deposes having seen Maniben being taken away by Nura Vali, Mohmmad Vali, Ishaq Amin, Page 34 of 66 HC-NIC Page 34 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Hanif Amin and other persons, to the factory. She further deposes arrival of her uncle's son Babubhai and his wife Gagiben at the scene of offence. Gagiben is examined as PW- 23 who corroborates having come to the scene of offence along with her husband Babubhai. Pertinently, PW-23 confirms the contents of the FIR lodged by PW-15 Deepakbhai who has turned hostile, to an effect that PW-15 had given to her an information that Mulabhai and his family members had a quarrel and were lying near the factory. It is also pertinent to note that after arrival of Gagiben and others, PW-16 came out and by that time police had arrived and she pointed out the scene of offence to the police and found deceased Mulabhai profusely bleeding as also her parents at different places.
12.13 PW-16, Shobhanaben, during the cross- examination, identified accused Hanif Amin, Nura Vali and his brother Mohammadvali by name. She, however, could identify a person sitting beside Mohmmadvali as his brother but could not identify him by name and on verification by the court, he revealed his name as Ibrahimvali, accused No. 2.
12.14 PW 16, Shobhna is as natural and as spontaneous as can be. She was frightened because of the incident and therefore hid herself in the house and could make out the occurrence of the incident because of the raising of alarms by the victims. She maintains that she did not come out of the house until the incident was over and accused had gone. It was very easy for her to falsely show her artificial presence at the scene of offence to be an eye-witness. Thus, she deposes what she saw except some exaggeration in relation to accused Nura Vali, she did not exaggerate even an inch of the facts in Page 35 of 66 HC-NIC Page 35 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT question. The witness was candid enough to admit that she had not named the accused in her police statements except two, though such names were found to have been mentioned therein. She could have been easily tutored on this aspect to artificially show that she stated the names of the assailants in the police statement. Similarly, she admits having omitted mentioning accused-Nura Vali and Isha Amin Kataria as the persons taking away Maniben to the factory in her police statement.
12.15 PW 17 deposes having been assaulted by accused Mohmmed, brother of Nura by a club made of handle of spade in the factory compound. She was also assaulted by Ibru by a club made of the handle of spade and by Hanif by means of blood stained knife (it however appears that blood stained knife was not recovered or discovered). It is deposed by her that Nura Vali and Isha Amin Kataria, both were armed with axe and Hasan Khota (not an accused) was armed with iron pipe. Her medical case papers reveal that she had sustained few fractures and cut wounds.
12.16. PW 17 has been cross-examined vis-à-vis the fact that she was not an eye witness and that the weapons attributed to the accused were easily available and can be possessed by anyone and that deceased-Mula Sajan had a criminal history and that one Hasan Pola, who was also one of the accused who has not been arraigned as such did not possess the wooden club and that accused-Nura Vali also received the injuries. Nothing substantial has come to the rescue of the accused from her cross-examination. She has identified her assailants and the medical evidence suggests Page 36 of 66 HC-NIC Page 36 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT multiple fractures respectively on her right leg and hand and left elbow. Thus, she is able to establish her being dragged and taken to the factory compound and being assaulted by the accused persons named by her with the weapons attributed to them except accused Nura Vali in relation to whom detailed discussion is made elsewhere in this judgement. There does not appear to be any material infirmity in her testimony. It is pertinent to note that PW 17 does not claim to have been taken near the place where her husband was being assaulted outside the factory gate, but states to have been taken to the factory compound. She thus does not claim to be the eye- witness for the assault on her husband-Mula Sajan. The witness was thus interested in stating what had actually happened to her during the incident apart from the happenings preceding the incident, i.e., coming of PW 15 to her house, a request by Mula Sajan to take him to Veraval on his splendor motorcycle in absence of her son. Thus, despite being inimical to the accused on account of land dispute, nowhere she had shown an undue interest of involving or implicating the accused falsely except accused Nura Vali.
12.17 PW 17-Maniben, omitted in her statement under section 161 of the Cr. P.C. to say that the persons named by her had come to fetch her and seeing them, she hid herself in the house and at that point of time, these people broke open the door and dragged her and told her that she would meet with the same fate as her husband, Mula Sajan, Dipak and Rama Sajan, his wife and son who were assaulted by those persons. Evidence of PW 32, Tejsingbhai Virsing, the Investigator would however suggest that though the aforesaid version was omitted, she did state in her statement under Page 37 of 66 HC-NIC Page 37 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT section 161 of the Cr.PC., that being frightened, she was going to hide herself in the house when Mohmmedvali and Hanif Amin amongst those persons came running towards her and caught hold of her and brought her to the factory compound and made her to lie there. It, thus, appears that the four accused named by her in the statement before the police had come to pick her up and two of them Ibru Vali and Hasan Mohammad had dragged her out of the house. It, therefore, cannot be said that the four persons named by her in the police statement had not come to pick her up. Thus, there is no material omission in this regard. In the opinion of this court, it was sufficient for the witness to mention broad material facts in her statement before the police and merely because the witness subsequently, before the court comes out with more specific version commensurate to the version given by the witness to the police, no material omission / improvement / exaggeration can be attributed to the witness.
12.18 Another omission brought out in the testimony of PW 17 is as regards the presence of Raju Rama and his being injured during the incident. This omission can well be appreciated while appreciating the evidence of Raju Rama.
12.19. Evidence of PW-17, the wife of the deceased seems to be narrating the incident as it occurred. She deposed having heard the screams and having seen the accused stopping the deceased and PW-15 and the accused, after stopping the two, having come to pick her up and she having gone in hiding. Thus, the witness is honest in omitting the fact that she saw her husband and Deepak being assaulted by the accused. She only states that they were stopped. Thus, there is no attempt Page 38 of 66 HC-NIC Page 38 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT to exaggerate the story which she could have easily done had she been tutored to state the story in favour of the prosecution. She corroborates the version of PW-16 that she was picked up by the accused persons from her residence. The only exaggeration found in the testimony of this witness is with regard to attribution of blood stained knife to accused Hanif. No blood stained knife has been recovered from Hanif. It also appears from the testimony of this witness that she bailed out the innocent person, namely, Isha Amin Darwani of Dhari village who was not involved in the incident but was mistaken for the real culprit Isha Amin Kataria. The prosecution, thus, corrected the mistake and exhibited honesty.
12.20. Except in relation of accused Nura Vali, no material contradictions/omissions/exaggerations are found in the testimony of PW-17. It appears that, according to the defence, one Hasan Pola was armed with a club and was named as such by PW-17 but was not arraigned as accused and in her cross- examination PW-17 denies that Hasan Pola was armed with a club. Except possessing a club, no attribution of criminal act is made to Hasan Pola.
12.21. The conduct of Maniben is sought to be nomenclated as unnatural since, instead of coming to the rescue of her husband Mulabhai, she wanted to hide in the house. In the opinion of this court, in a case where assailants are more in number than the victims and the saviours, the fear of being killed or assaulted perceived by person may induce a person to give priority to his life rather than to gather courage to rescue him in such a situation. Behaviour of a person in a given situation may vary from person to person and it cannot Page 39 of 66 HC-NIC Page 39 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT be said that every person in a given situation would be as courageous as another. Therefore, on the mere ground that Maniben wanted to go in hiding rather than coming to the rescue of the victim, her testimony cannot be regarded as unnatural.
12.22. PW-18 deposes having reached the scene of offence in response to the screams of Mulabhai, the deceased, which were heard by her and her husband when they were busy in the agricultural work on their field. This witness also does not improve the story to show her presence at the scene of offence from the inception which she could have easily done. On the contrary, she has shown her presence along with her husband at her agricultural field at the time of inception of the incident. The witness bears testimony to the in-progress assault by the accused armed with deadly weapons when she and her husband reached the scene of offence. By the time they reached the scene of offence, the deceased had already collapsed. The fact that the witness heard the screams of the deceased who was her brother-in-law and was residing in the neighbourhood and who had come to her husband to seek help on the previous night is the fact connected with the fact in issue i.e. as to whether the deceased was assaulted by the accused. It was natural for her to rush to the scene of offence after hearing the screams of the deceased and thus applying section 6 of the Indian Evidence Act to the facts of the present case and considering the narration of the facts seen by the witness, it cannot be said that the witness was not an eye witness to the in-progress assault on the deceased by the accused. Pertinently, in the cross-examination, the witness reiterates her being eye witness to in-progress assault on the Page 40 of 66 HC-NIC Page 40 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT deceased by the accused by denying the suggestion made by the defence that by the time the witness reached the scene of offence, the assault on the deceased had already ceased. No questions to bring out material contradictions / omissions / exaggerations etc. vis-a-vis her police statement were put to this witness and she has confirmed her version even in the cross-examination. She has, however, been successfully confronted with the fact that she did not name the assailants in her police statement after regaining her senses nor did she mention such fact to anyone else, neither the Doctor in Veraval enquired with her about her assailants and the method and the manner of assault on her. This aspect is dealt with in the later part of this judgement.
12.23 As per deposition of PW-18, after reaching the scene of offence, she and her husband Ramabhai saw accused Nura Vali, Mohmmadvali, Isa Amin and others assaulting Mulabhai by means of axe, logs, pipe; that accused Nura Vali, Mohmmadvali, Isa Amin, each had axe and Ibru and others had logs and pipe and accused Hanif Amin had knife. It is stated that Isha Amin Kataria assaulted her with axe above the left knee and Ibru assaulted her at random with a log. Her husband was also assaulted at random. Resultantly, both the husband and wife fell down. It is stated that the incident had taken place near the gate of the factory and therefrom all the three persons were dragged by the accused to the compound of the factory where also they were beaten. Thereafter, the police arrived. That Maniben, her sister-in-law were also assaulted during the incident; that Maniben and Rajubhai were shifted to Junagadh hospital for further treatment. This witness also identified one Isha Amin Darwani who was initially falsely Page 41 of 66 HC-NIC Page 41 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT implicated, in the test identification parade held in the office of the Mamlatdar and absolved him and other person named Isha Amin Kataria who was actually involved in the offence was identified by her in the court. In the cross-examination, she was questioned in relation to identification of the weapon, the distance between her house and Dobhai mosque; injury to Nura Vali to which she pleaded ignorance; presence and participation of 25 to 30 persons assaulting them, which fact she denied, not possessing the weapon by any of the witnesses which fact she admitted; that she did not reveal the name of the assailants after she regained senses to the police or to the Doctors in Veraval hospital and that she disclosed the names only at Junagadh to the Doctor which facts she admits; that she did not mention the names of the assailants to any one before her police statement was recorded. She admitted that she would not be in a position to specify the names of the persons beating Mulabhai and that she was not beaten by the weapon like knife which fact she admits. Thus except some exaggeration in relation to accused Nura, the witness seems to be reliable.
12.24 PW-19, son of PW-18 and PW-20, corroborates the version of PW-18 and PW-20 in so far as hearing of screams of the deceased and proceeding of his parents to the scene of offence is concerned. He could also hear the screams of his parents who owing to confusion as to what to do, preferred to stay back in the field. Thus, this witness also honestly shows his presence not at the scene of offence at the time of occurrence but at his field. He also corroborates the version of PW-20 that accused Hasan and Mohammad who were instructed by accused Nura Vali for picking him up, had come Page 42 of 66 HC-NIC Page 42 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT to him, armed with weapons, to pick him up. Nothing much turns out from the cross-examination of PW-19 in favour of the defence.
12.25 PW-19 corroborates the prosecution case on material particulars as discussed in greater detail and no materials contradictions or omission are found in his cross- examination. He was cross-examined mainly as regards the antecedents of deceased Mulabhai, his not going to the scene of offence, coming of about 20 to 30 persons at the place of offence, injury caused to Nura Vali and non-possession of the weapons by his parent, no injury on the vital part of his body and contradictions/omissions regarding Maniben being dragged to the factory.
12.26. Testimony of PW-20, however, is surrounded by material omissions/exaggerations/improvements. He claims that the deceased talked to him when he reached the scene of offence and told him that his hand was chopped off by the accused persons and the witness must save his life. These facts are not found in the police statement of the witness as deposed to by PW-32. The fact that Isha Amin Kataria targeted his leg with axe as also other parts of the body by other accused persons at random is also not stated in the police statement by him so also the fact that his wife Somiben had come with him who was also assaulted by means of axe on her leg by Isha Amin Kataria has not been stated by him. The fact that Nura Vali stated that now sons of PW-20 be beaten and on that from amongst the accused, Hasan and Mohammad proceeded with wooden club to beat his son at the field and that his son was assaulted by the above two accused with Page 43 of 66 HC-NIC Page 43 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT wooden club resulting into fracture in both of his hands and in the leg and that when two accused returned, accused Nura Vali instructed them to pick up the wife of the deceased whereupon Nura Vali and his brother and Isha Amin Kataria and his brother, all of whom were present in the court fetched Maniben, wife of the deceased and dumped her at the place where the witness was, are not stated in the statement before the police by the witness. Thus, the witness seems to be exaggerating and improving the story and is not reliable.
12.27. However, on the mere ground that the testimony of PW-20 is not reliable, reliable testimony of other witnesses discussed in detail hereinabove cannot be thrown overboard. It can be seen that each and every material fact stated by the witnesses is corroborated by each other.
12.28. It can be seen that none of the witnesses explain the admitted serious injury on the person of accused Nura Vali. Accused-Nura in his statement recorded under section 313 of the Cr.P.C. came out with the version that he was a labour contractor, having kept a contract for construction in a "fish factory". That deceased-Mula Sajan was unauthorized occupant of the land in question and, because of the construction activity being carried out in the factory above referred, the approach to the land occupied by Mula Sajan was being obstructed. That accused-Nura had no interest in the said land whatsoever; yet for such obstructions, the deceased- Mula Sajan used to file frequent applications against him. That Mula Sajan was a headstrong person, who was involved in the crimes like loot and quarrels and that he had also taken disadvantage of being a member of SC & ST and had lodged Page 44 of 66 HC-NIC Page 44 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT false complaints. He has further stated in his statement under section 313 that, on the date of incident i.e. 09.08.2006, he was present at the factory alongwith other labourers when Mula Sajan alongwith his aides came in the compound of the factory and asked them to stop the construction work and demolish the compound wall. Accused-Nura directed him to approach the owner and responsible persons of the factory and he was informed that the construction work will not be stopped in absence of instructions to him from the owner; whereupon, Mula Sajan and his aides assaulted him on the head and shoulder causing serious injuries. He, therefore, collapsed and in the meanwhile the labourers, who were working in the factory went to the village and came with 15 to 20 people and they picked up the quarrel with Mula Sajan and his family. Accused-Nura went on to add in his statement under section 313 that in the meanwhile, owing to his head injury, he almost lost his senses and regained the same on the next day in Junagadh Hospital.
12.29 Thus, the important facts emerging from the above statement are as regards his presence at the scene of offence and the presence of deceased - Mula Sajan and his aides. That deceased-Mula Sajan and his aides were the aggressors and that 15 to 20 villagers were called by the labourers working at the factory and it is those 15 to 20 persons who picked up the quarrel with Mula Sajan and his aides. That until those 15 persons came and picked up the quarrel with Mula Sajan and his aides, he was able to see all the activities and almost lost his consciousness after the aforesaid happenings and regained it only on the next day in the Junagadh Hospital.
Page 45 of 66HC-NIC Page 45 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT 12.30. It is also seen from the evidence that the witnesses, more particularly, PW-16 and PW-17 deposed having seen accused Nura Vali moving with weapon in the hunt of other family members of the deceased i.e. his wife and nephew. If the version of the witnesses on the aforesaid count is to be believed, it would mean that accused Nura Vali who was admittedly seriously injured, received injury after he along with other accused picked up his victims. If that is true, the prosecution was required to explain as to how he received injury after he picked up his victims and who injured him. In such a situation, the victims who were picked up by accused Nura Vali would have been in a position to state as to how and who caused injury to accused Nura Vali. However, if he was injured at the inception of the incident so much so that he lost his movement, it was impossible for him to hunt for his victims. If accused Nura Vali was injured at the inception and still the witnesses depose his movement with weapon, the only inference which can be drawn is the witnesses are not telling the truth and are hiding the crucial evidence. Thus, a doubt looms large on record as to the assailants of accused Nura Vali and the manner and the time of assault on him during the course of the incident.
12.31 Not only that the injury on the person of the accused Nura Vali is not explained, PW-16 makes a vital omission of the names of the accused and more particularly makes an omission of accused Nura Vali and Isa Amin as the persons taking away Maniben in her police statement. Though PW-17 Maniben corroborates the testimony of PW-16 Shobhanaben to an effect that PW-17 was taken away by Nura Page 46 of 66 HC-NIC Page 46 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Vali amongst other accused, her omission with regard to Nura Vali remains in her statement under section 161 of the Cr. P.C. The omission of both these witneses appears to be deliberate inasmuch as admittedly Nura Vali was seriously injured and he had fainted at the scene of offence and thus lost mobility. It is, therefore, difficult to digest the fact that he could move from place to place with a weapon for dragging out and assaulting his victims. This part of the prosecution story, therefore, appears to be highly doubtful in absence of the explanation of the serious injury on the person of accused Nura Vali. The unanswered questions in the prosecution story are how and who assaulted Nura Vali. If Nura Vali had serious head injury and had fainted, how he could move with the weapons and participate in the offence. If Nura Vali was immobilized by injury and yet, he is shown to be moving with weapon for committing offence, are the witnesses giving true account of the story? Was deceased Mula Sajan an aggressor as contended by Nura Vali in his statement recorded under section 313 of the Cr. P.C.? Is it that after Nura Vali was assaulted by deceased, other group of people came from the nearby village and assaulted deceased Mula Sajan to death, to avenge the assault by Mula Sajan who is alleged to have antecedents, on Nura Vali? Are the witnesses prejudiced because of their enmity and preexisting dispute regarding land with the accused? Since the witnesses are inimical to the accused and are related to the deceased, their possibility of exaggerating the story and suppressing a part of the story disfavouring them and presenting altogether a different version than what had really happened, cannot be ruled out in the facts of the present case in absence of explanation of the serious injury on the person of accused Nura Vali. So far as Page 47 of 66 HC-NIC Page 47 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT assault on accused Nura Vali and his movement are concerned, the evidence in the aforesaid circumstances cannot be said to be of a sterling quality. Under such circumstances, the defence version coming from the mouth of the accused Nura Vali that the deceased who admittedly was externed at one point of time for two years and against whom the villagers had given application to the Collector and against whom one Vali Mohmmad Hussan of Dhari village had filed a complaint complaining beating and threat as admitted by PW-20 in paragraph No. 13 of his cross-examination, had assaulted accused Nura Vali stands probablised in absence of cogent evidence explaining the injury on accused Nura Vali by the prosecution.
12.32. According to accused Nura Vali other 20 or 25 persons from Dhari Village had come with weapons to the scene of offence and had assaulted the deceased and other witnesses. If that version was true, the injuries on the person of the deceased and the witnesses would have been caused at random and not merely fractures on hands and legs. If the assailants were in such a big number and had no plans to inflict injuries only on hands and legs and/or other non-vital parts of the body, in all probabilities, some of the injuries might have landed on the vital parts of the body of the deceased and the witnesses, which is not the case of the prosecution. The fact that mostly, the injuries were directed on non-vital part of the body of the deceased and the witnesses leads to the inference that the assailants might have decided to attack on non-vital parts of the body of the deceased and the witnesses so as to threaten and compel them to vacate the land in question. This could not be the plan of the assailants, who Page 48 of 66 HC-NIC Page 48 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT came there on a sudden call without any premeditation. Therefore, story of coming of 20 to 25 persons from Dhari village and their assaulting the deceased and the witnesses, as canvassed by accused Nura Vali does not seem to be probable.
12.33 PW-17, PW-18, PW-19 and PW-20 are all injured witnesses and have clearly named and identified them as their assailants in the court. It stands to no reason as to why a victim would bail out his assailants and implicate the innocent. It is understandable if the witness implicates his enemies in a false case along with the real culprits but it would be absurd to say that for the purpose of implicating his enemies, the injured witnesses would bail out the real culprits.
12.34. The credibility of the investigation is sought to be assailed with the argument that admittedly a wrong person was implicated and the so-called mistake was sought to be corrected subsequently by evidence of PW 18 by taking her for test identification parade of falsely implicating Isha Amin Dharwani in place of accused named Isha Amin Kataria. It is argued that no identification parade was held for accused Isha Amin Kataria. It was argued that thus there had been hasty investigation and chances of implicating innocent person cannot be ruled out. In the opinion of this Court, the Investigating agency was alert and corrected its mistake by excluding the wrongly implicated person and substituting the real culprit. By such an act, in fact, credibility of the investigation stands enhanced, inasmuch as, by such exclusions and inclusions, investigator wanted the real culprit to be tried and not the person who was not involved.
Page 49 of 66HC-NIC Page 49 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT 12.35. Similarly, referring to the testimony of PW 18, it was argued that not naming the assailants after regaining of senses by her to the Police or doctors in Veraval Hospital and the disclosure made by her for the first time at Junagadh Hospital and her non-mention of the names of the assailants to anyone before recording of her police statement was fatal to the prosecution. It was further argued that the doctor was duty bound to solicit and record the names of the assailants, if available and the history of the incident in question. In support of the said proposition, reliance is placed upon State of Gujarat v. Hasmukh @ Bhikha Gova Harijan, 292 GLR Vol.XXXVII (1). In the opinion of this court, Hashmukh (supra) cannot be relied upon for discarding the evidence or doubting the testimony of the witness for non-revelation of the name of the accused and the manner of occurrence or for the lapse on the part of the doctor in not soliciting the above details, if possible, from the person in the know of such details. The case can be cited as authority reminding the professional duty to the doctors and others of soliciting material facts (wherever possible) and to assist the court with their expertise, objectively and independently. Obligation of the doctor soliciting the details of the assailants and the history of the occurrence, even if not stated by the victim or the relatives of the victim to the Doctor emerges in paragraph No.10 of the case thus:
"10. It is further interesting to note that P.W. 11 Jetha Anand and P.W. 12 Sakra Deva, in unmistakable terms have stated on oath before the Court that when the injured was taken to Irwin Hospital they had named Bhikha Gova as the person having given blow to the deceased with knife to the Page 50 of 66 HC-NIC Page 50 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT doctor present there, and still to our greatest surprise, P.W. 2 Dr. J.J. Pandya in his cross-examination though admitted that while taking down the history of assault from injured whatever is said by him would be taken down but at the same time, ordinarily, even if the name of the assailant is given, the same is not recorded in the history!! This answer of the Doctor is indeed quite strange, perplexing and shocking for the simple reason that if while giving history of the assault, the injured also gives out the name of the assailant/s, and the manner in which the incident took place, then in that case, it is indeed the bounden duty of the Doctor to record the same as it is and he can't be permitted to turn deaf ear to. This is his plain and simple inevitable bounden professional duty. To act to the contrary demonstrates not only the lack of professional awareness, ethics and duty on the part of the concerned Doctor/Medical Officer but also lack of sense of duty as a responsible citizen. In criminal trial, the doctors play a pivotal role, and more particularly in bride burning/assault cases and for that purpose in fact any other serious cases, where these days it is the demand of the society and call of duty upon the concerned Doctors/Medical Officers to see that they definitely put questions to the burnt or injured person brought before them, and record the history, including the name of the assailant, whosoever he is. Doctors/ Medical Officers should specially note that in criminal trial and motor accident cases they are considered to be easily the best and only independent witnesses assisting the cause of justice,Firstly, for their expertise knowledge; secondly for their objective assistance and thirdly for their outright independence having no personal axe to grind. We may, of course, with great reluctance hasten to add that where we find in number of cases the way in which P.M. notes, medical certificates are tampered with, the independence of doctor has become quite Page 51 of 66 HC-NIC Page 51 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT questionable in some given cases because of certain black- sheep (as in other fields also) who are definitely slur on otherwise fair and glorious name of medical profession. Anyway, when the injured person is taken to the Doctor/Medical Officer incidentally enough he is not acting there merely as a Doctor/Medical Officer, but he in fact in sequence of events also become quite an important link prosecution witness being the first and earliest in point of time coming in contact with the injured giving out name of accused. This is possibly, precisely the point of time where injured would disclose true prosecution case by naming the real assailant/s (if known) over and above other history of assault, which can forestall the subsequent concoction by the Investigating Agency in a given case. As a matter of fact, in a given case, when the injured is taken to the Doctor/ Medical Officer, is ultimately found to be in extremely serious condition, he may not be in a position either to inform the police and thereby the Executive Magistrate to record the dying declaration, and then in that case to help save situation and thereby the ultimate cause of justice, it is indeed the first and foremost sacred duty of such Doctor/Medical Officer to take down whatever voluntarily falls down from the lips of the injured forming it part of case papers and if the injured/burnt person doesn't volunteer of his/her own in naming the assailant, then in that case, it is equally the further duty of the concerned Doctor/Medical Officer to inquire and find out from him as to who was the assailant (if possible) because at that stage what ought we not know that but for the last statement of injured recorded by Doctor/Medical Officer he may ultimately succumb to the injury there would be nothing, no other piece of evidence to trace and connect the accused with the crime alleged against him!! Under such demanding and not to be taken chance with circumstances, if the Doctor/Medical Officer Page 52 of 66 HC-NIC Page 52 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT attending upon the injured/burnt remains just wooden, passive, placid, unconcerned, mechanical he would be simply inadvertently playing in the hands helping the accused to go unpunished!! No doubt, and indeed it is quite true that the first and foremost concern of any Doctor/Medical Officer is to give first-aid medical treatment to the injured, and that he is certainly not Police Officer to record the complaint. But at the same time, in all medico-legal cases, the Doctor/ Medical Officer attending upon and treating injured when has an opportunity to know the material facts, more particularly the name/s of the assailant/s, he would not be justified in not recording the same on the ground that his first and last job was only to give medical treatment only to the injured and that he had no concern or business whatsoever to do anything further by recording the names of assailant. When any person sees or hears about the prosecution case civic sense demands of him to be a witness of the said facts first also before the police by giving statement and thereafter the Court. Doctor/Medical Officers are as much a part of the society, and are citizens and accordingly, cannot be exception to this. To help the cause of justice is the duty of every citizen, who happens to be a witness in chain of events of the prosecution case. In fact, when law enjoins upon every Doctor/Medical Officer without any exception to inform the police in every medico-legal case, this very duty further enjoins upon the concerned Doctor/Medical Officer to provide himself as the best material-
link connecting the accused with injury, ultimately crime and thereby helping out the real cause of justice. Accordingly, to say the least, not to record name of accused, though given, while taking down the history of assault from the injured, is indeed quite contrary to the professional ethics. In this way, it is only upon this statement of the injured/deceased before the Doctor/Medical Officer that justice could be either brought Page 53 of 66 HC-NIC Page 53 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT home or driven off at the very threshold. If this rightful duty is not performed by the Doctor/Medical Officer, and by the time police or Executive Magistrate reaches the hospital, an important clue connecting the accused with the crime could be lost, if injured unexpectedly succumbs to the injury in the meantime, and thereby, there are all the possibility of the accused going unpunished, deceased and society denied justice, if there is no other evidence available. In this view of the matter, not to record the history, including the name of the assailant if given by the injured, by the Doctor/Medical Officer, is indeed a very serious lapse on his part which cannot be countenanced lightly. At this stage it needs to be clarified that merely because the concerned Doctor/Medical Officer if according to his understanding rightly or wrongly fails to note down the name of assailant, while taking history of assault from the assailants, that circumstance standing by itself will not be necessarily and automatically fatal!! Not only that but in a given case of bride killing, where injured is unconscious or unable to speak, history given by the husband or his relative does not assume any mechanical importance because it was the earliest in point of time before Doctor/Medical Officer who is considered to be independent witness for the obvious reason that true cause of death may not come out from these persons being interested in suppressing it. In fact, in every case when the police starts with the investigation, it is the duty of the I.O. to contact first of all the concerned Doctor/Medical Officer who gave treatment to the injured, and inquire from him firstly, who brought the injured/burnt to hospital; secondly, whether injured/burnt was conscious and in a fit state of mind, able to speak; and thirdly whether injured/burnt named (if known) or given description (if unknown) of accused person/s who assaulted him. The reason is, if the injured had disclosed the name of the assailant, to the Doctor/Medical Officer then that Page 54 of 66 HC-NIC Page 54 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT hearing part of evidence by Doctor/Medical Officer is an evidence of the ordinary witness where he at that stage will not figure as an expert witness. It is only regarding the injury part that his evidence being of an expert is straight-way admissible under Section 45 of the Evidence Act. But so far as the evidence of the doctor regarding disclosure of name of assailant is concerned, that stands on a different footing as there the doctor is merely an ordinary witness and as such witness, it is the duty of the I.O. to record his statement under Sections 161 and 162 of Criminal Procedure Code, 1973. This is further with a view to protect the interest both of the prosecution and accused and ultimately of justice. This is with a view to see that the same doctor in a given case with all human failings ultimately, for whatever reason may not become plyable weather-cock, and give a different version setting at naught the fate to the prosecution and ultimately justice. Suppose in a given case, the injured had given the name of the assailant to the Doctor/Medical Officer and the said Doctor/Medical Officer for whatever reason did not give it before the Court while deposing, then in that case he can be certainly contradicted by prosecution with his previous police statement if it is recorded; and similarly in another type of given case, where the injured had not at all given the name of the assailant and yet Medical Officer somehow names assailant before the Court, then here also he can be contradicted by defence-Advocate, by calling attention of the Medical Officer to his previous statement before the police. Accordingly, firstly it is the duty of the Doctor/Medical Officer to record the history as it is, not only with regard to the injury alone and/or weapon with which it was caused, but also with regard to the name and/or description to the person who caused it. Secondly, it is the duty of the I.O. in turn when he comes to know that the injured was taken to the hospital to know from (i) the Page 55 of 66 HC-NIC Page 55 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT concerned Doctor/Medical Officer who gave the treatment at first as to whether the injured had disclosed the name of the assailant and thereafter (ii) the injured who is the best person to give name of the assailant and if the assailant was unknown the identity description on the basis of which he can be traced out. The I.O. should also go to the other attendants who brought injured to the hospital and also to inquire from the Assistants of the concerned Medical Officer, that is to say compounder, nurse, peon, etc., who were present at the hospital at the time of treatment and know what was the version of the injured at the earliest in point of time if before Medical Officer could attend to injured he succumbs to the injury. Further still for such details, the I.O. should not wait for the medical certificate to come subsequently because we have come across several such cases, wherein the medical certificates are given leisurely after lapse of considerable time and during this time the entire complexion of the case conveniently changes suiting to the exigencies of interested parties by altering nature, kind and degree of injuries for very many reasons too well-known to be stated here resulting into gross miscarriage of justice, in criminal and motor accident claim cases which can never be countenanced lightly by any Court. It is the right of the police to get medical certificate at the earliest and it is equally the corresponding duty of Medical Officers to give medical certificate/post-mortem notes immediately to the police. The Investigating Agency should insist for immediate collection and should collect it accordingly, with a view to see that interested parties do not try to influence and tamper with medical record, or to say the least, to avoid allegation that the concerned Doctor/Medical Officer has conveniently changed opinion, certificate, etc., which not always but at the same time, many a time may found to be quite true."
Page 56 of 66HC-NIC Page 56 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT (emphasis supplied) 12.36. It is true that the names of the assailants did not figure promptly in the statements made by the witnesses under section 161 of the Cr. P.C. However, it is noticed that on the very day of the incident, i.e. on 9.8.2006, name of accused No. 6 Nura Vali was revealed by Somiben to Dr. Dhansukhbhai Govindbhai Solanki, PW-14, as deposed by her. Names of the assailants, however, were not disclosed to Dr. Kulin Ramniklal Vyas, PW-12 and Dr. Arjun Gorabhai Rathod, PW-13. However, a disclosure was made by Raju Rama aged 23 years to the Medical Officer, Junagadh hospital, that he was assaulted by `Muslim people'. Similar disclosure was made by Maniben to the Medical Officer, Junagadh hospital. The assailants have been identified by each of the witnesses. The evidences of the witnesses are found to be trustworthy and reliable and therefore, their mere not naming the accused would not be fatal to the prosecution case.
12.37. There is no evidence that there was a free fight between two groups as contended by the learned counsel for the appellant. In absence of such evidence, there can be no question of invoking Exception 4 to section 300 of the IPC as argued by the learned counsel for the appellant.
12.38 True, it is to say that discovery by one accused of the material possessed by several accused cannot be regarded as discovery qua other accused and to that extent the facts or the things discovered cannot be relied upon as such. However, the case like present one which is as clear as crystal, even if Page 57 of 66 HC-NIC Page 57 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT the discovery is discarded from the evidence, it will not make any difference.
12.39. Having regard to the evidence of PW-32 that after the occurrence of the incident, initially the deceased and the injured witnesses had to be admitted to the hospital at Veraval and thereafter had to be shifted to the hospital at Rajkot and that they were in grief on account of death of their leader in the family, which justified the non-disclosure of each and every minute detail in the statement of the witnesses recorded by the police and such other circumstances as are narrated by PW-15 in his FIR, the lodgement of the FIR within seven to eight hours of the incident in question cannot be regarded as suffering from inordinate delay.
12.40 It is true that if the prosecution comes out with the evidence of sterling quality, it cannot be brushed aside on the basis of the statement under section 313 of the Cr. P.C. unless the defence version competes with the version of the prosecution, raising a serious doubt in the mind of the court. In the instant case, the version of the prosecution as to injury on the person of accused Nura Vali is lacking in material particulars and is surrounded by serious doubts. Thus, the prosecution is unable to stand on its own legs in so far as such version is concerned. In fact, there is no explanation of the manner of injury on accused Nura Vali and his assailants. In the context of the above facts, the defence version can be said to be a competitive version. Even if such version is not treated as competitive version, it is the only version in relation to the injury caused to accused Nura Vali. Therefore, in absence of contrary version this court can rely upon the same.
Page 58 of 66HC-NIC Page 58 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT 12.41 Argument made by the learned counsel for the appellant doubting veracity of the prosecution case on the ground that the incident in question occurred at three different places, if the testimony of Investigator PW-32 read with panchnama exh. 14 is taken into account whereas the witnesses depose as if it occurred at one place does not merit acceptance as the explanation for the same can be noticed from the testimony of PW-18 when she states that after assaulting the deceased, her husband PW-20 and herself , the accused dragged them to the compound of the factory and assaulted them there also. Thus, according to this witness, they were assaulted at two different places. PW-17 Maniben names a third place as to the place of incident and incriminating material has been found from all such places.
12.42 The witnesses have attributed the use of different weapons by different accused for assaulting them and they complained of the injuries caused to them by the accused named by them in their respective testimonies. It is, therefore, relevant to address the nature of injuries caused to the witnesses. It appears from the testimony of PW-12, Medical Officer, Junagadh, that mostly fractures were caused on non- vital part of the body of the victims, namely, Maniben PW-17, Somiben PW-18, Raju PW-19, Ramabhai PW-20 and that the injuries were not attributable to the weapons like shovel as admitted by PW-12 in his cross-examination. The testimony of PW-13 Dr. Arjun Gorabhai Rathod, Medical Officer, Junagadh, also shows that the injuries caused to PW-17, PW-18, PW-19, and PW-20 were non-fatal and were on non-vital part of their body. As per the testimony of PW-14 Dr. Dhansukhbhai Page 59 of 66 HC-NIC Page 59 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Govindbhai Solanki, Medical Officer, Junagadh, injuries sustained by PW-18 Somiben were simple injuries and fracture was ruled out. Thus, it can be seen that PW-17, PW-19 and PW- 20 sustained grievous hurt in the nature of fracture while PW- 18 sustained simple injuries during the course of the incident in question. Each of these witnesses sustained not more than two or three injuries.
12.43 Injuries on the person of the deceased are summarized as under:
1. Left humerus lower end compound multiple fracture with incise wound bone deep.
2. Two left side ribs of the chest had broken resulting into the rupture of liver.
3. Left leg tibial middle 2 x 2 cm cut wound
4. Lower part of left tibia was fractured with two cut wounds 1 ½ cm
5. Right leg knee stab fracture 2 ½ cm
6. ½ cm x 2 cm bone deep cut wound on right leg knee
7. Right leg tibia middle bone deep 4 x 1 cm cut wound
8. Right hand cut wound bone deep 2 ½ cm
9. Right hand upper portion 4 x 3 cm scratch wound
10. Right thigh swelling 12.44. As testified by PW-12 death of the deceased was attributable to excessive bleeding due to rupture of liver. The weapons like axe, iron pipe, handle of shovel can cause such injuries as deposed by PW-12. The version of PW-12 vis-a-vis the injuries caused to the deceased and the cause of his death Page 60 of 66 HC-NIC Page 60 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT have not been controverted in the cross-examination of the witness.
12.45 The medical evidence correlate the above injuries to the weapons attributed to the accused. Thus it is proved beyond reasonable doubt that weapons in question were used by accused for inflicting injuries complained of by the victims.
12.46. It is true that the panch-witness regarding recovery and discovery of the weapons has turned hostile. It is settled legal position that discovery and recovery is merely corroborative piece of evidence and even in absence of such evidence, conviction can be sustained if other evidences prove the prosecution case beyond reasonable doubt. As many as four witnesses have attributed the possession of deadly weapons like axe, shovel, iron pipe etc. to the accused. They have also testified the use of the said weapons on their persons by the accused to cause injuries to them. The incident had occurred on 9.8.2006 and the witnesses were called upon to testify it almost after two or three years and being rustic villagers, may not be able to attribute precisely weapons possessed by the accused at the time of offence during the course of their testimony in some stray cases. On mere such ground, the testimonies cannot be discarded when the medical evidence correlates the injuries to the weapons used on the witnesses for inflicting injuries on them by the accused.
12.47. It is noticed from the evidence on record that the accused were seven in number and thus being more than 5 and having common object, were the members of the unlawful assembly and they had used the force/violence in Page 61 of 66 HC-NIC Page 61 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT prosecution of their common object, armed with deadly weapons and had also caused simple to grievous injuries to the deceased and PW-17, PW-18, PW-19 and PW-20 and since it is established from the testimony of PW-18 that threat to cause death was given by accused persons to the deceased, the case against accused is made out under sections 326, 325, 120 B, 324, 143, 147, 148, 149, 323, and 506(2) of the IPC.
12.48. However, there is no allegation worth the name against accused having committing criminal trespass punishable under section 447 of the IPC and therefore, the accused appellants are required to be acquitted of the said charge. Furthermore, no evidence for an offence under section 504 of the IPC is forthcoming. Therefore, the accused are required to be acquitted of the charges of the said provision as well.
12.49. Section 3 of the Atrocity Act can be applied if the accused are not the members of Scheduled Castes / Scheduled Tribe. There is nothing on record to show that the accused persons are not the members of Scheduled Castes/Scheduled Tribes. It is settled legal position that in absence of such averments in the complaint, the complaint can be quashed and thus the case devoid of such averments and/or proof cannot be entertained. The accused are, therefore, acquitted of the charges under section 3(2)(v) of the Atrocity Act.
12.50 So far as section 302 is concerned, it is required to be seen as to whether the act attributed to the accused was done with intention of causing death or such bodily injury to the knowledge of the accused that it was likely to cause death Page 62 of 66 HC-NIC Page 62 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT or that the bodily injury was intended and was sufficient in the ordinary course of nature to cause death or it was within the knowledge of the accused that the act they were committing was imminently dangerous that it must in all probability cause death or bodily injury likely to cause death and that such act was committed without any excuse for incurring the risk of causing death or injury as aforesaid.
12.51. It is required to be noticed that in the instant case the accused are attributed with deadly weapons like axe, shovel, iron pipe etc. They were seven in number as against one helpless person who did not have any weapon. It was very easy for the accused to have dealt a sharp cutting deadly blow on the vital part of the body of the deceased. As noticed above, the medical evidence suggests that mostly the hands and legs of the deceased were targeted. It appears that unfortunately one blow landed on right chest of the deceased fracturing two ribs resulting into rupture of liver which in turn resulted into excessive bleeding contributing to the death of the deceased. Considering the fact that mostly non-vital parts of the body of the deceased were targeted, despite the accused possessing deadly weapons, it appears, that the accused deliberately avoided dealing blows on vital part of the body of the deceased. It also appears that one blow accidentally landed on the right chest of the deceased fracturing two ribs and rupturing the liver. The intention of the accused is also clear from the fact that even in case of other witnesses, their vital part of the body was not targeted and fractures were caused to three witnesses named above and simple injury was caused to one witness. Thus, no intention or knowledge as contemplated in section 299 of IPC can be Page 63 of 66 HC-NIC Page 63 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT attributed to the accused. The act of the accused also cannot fall under section 300 of the IPC inasmuch as accused are attributed with dealing a blow on the right chest rib of the deceased and the cause of death is rupturing of liver. Dealing a blow on ribs and fracturing them cannot be said to be an act contributory to the death of the deceased, neither can such act be regarded as representing intention of the accused to cause death or the knowledge that such a blow was likely to result into death. Thus in absence of knowledge and intention, the case would not fall in section 299 or section 300 of the IPC.
Therefore, the accused could not have been convicted for the offence punishable under section 302 of the IPC. They are, therefore, required to be acquitted for the said offence. Accordingly ordered. They are, however, rightly convicted, inter alia, for the offence punishable under section 326 of the IPC.
12.52. In view of the above, there is no question of answering the alternative argument of the learned counsel for the appellant that the case would fall within exception 4 to section 300 of the IPC.
12.53. As noticed above, so far as accused Nura Vali is concerned, there is material infirmity in the case of the prosecution. It is doubtful as to whether he was capable of moving with deadly weapons after receiving serious head injury which rendered him unconscious, if at all, the injury was caused at the inception of the incident which is probabilized by the statement of accused Nura Vali made under section 313 of the Cr. P.C. Therefore, benefit of doubt must go to accused Nura Vali and he is required to be acquitted of the charges Page 64 of 66 HC-NIC Page 64 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT levelled against him.
12.54 No separate sentence for the offences punishable under sections 323, 324, 325, 326, 120B, 504 and 506(2) of the IPC came to be imposed upon the accused persons. They have, however, substantially suffered the sentence, inter alia, of life imprisonment for the offence punishable under section 302 read with section 149 of the IPC. As the accused are acquitted of the charges of section 302 of IPC, the sentence already suffered by them under the said provisions shall be treated as the sentence under section 326 of IPC and no separate sentence is required to be ordered for the offences punishable under sections 323, 324, 325, 120B, 504 and 506(2) of the IPC.
12.55 Sentence under section 326 of the IPC imposed by this court shall run concurrently with other sentences sustained by this court.
12.56 In view of above discussion, the appeal is partly allowed. Accused No. 6 Nura Vali Katariya is ordered to be acquitted of the charges levelled against him under sections 302, 326, 325, 120B, 324, 143, 147, 148, 149, 323, 504, 506(2) of the Indian Penal Code and section 135 of the Bombay Police Act as well as section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
12.57. Rest of the accused are acquitted of the charges levelled against them under sections 447, 302 and 504 of IPC and section 135 of the Bombay Police Act and section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Page 65 of 66 HC-NIC Page 65 of 66 Created On Sat Sep 10 03:19:53 IST 2016 R/CR.A/441/2014 CAV JUDGMENT Atrocities) Act.
12.58 For the offence punishable under section 326 of the IPC, the sentence already undergone by the accused shall be treated as the sentence imposed upon them under the said proceedings. No separate sentence is ordered for offence punishable under sections 323, 324, 325, 120B, 504 and 506(2) of the Indian Penal Code. Rest of the sentences are sustained. The appellants shall be set at liberty forthwith if not required in any other case.
(HARSHA DEVANI, J.) (G.R.UDHWANI, J.) (pkn) Page 66 of 66 HC-NIC Page 66 of 66 Created On Sat Sep 10 03:19:53 IST 2016