(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict and is directed against an order of conviction and the consequent sentence dated 16th November 2006 passed by the Additional Sessions Judge, Fast Tract Court No.1, Chottaudepur, Dist. Vadodara, in Sessions Case No. 45 of 2006. By the said order, the learned court below found the appellant guilty for murder under section 302 of the Indian Penal Code and consequently, imposed sentence of rigorous imprisonment for life and a fine of Rs.100/-; in default of payment of fine, the appellant was directed to further undergo rigorous imprisonment for one month. The appellant, however, was declared not guilty for the crime punishable under section 135 of the Bombay Police Act.
2. The case made out by the prosecution may be summed up thus:
2.1 On 26th March 2005, one Idalbhai Maniyabhai lodged a complaint before the PSI, Rangpur Police Station, Camp at Chottaudepur Hospital, to the effect that he was living at Simalkuva, Patel Faliyu, Taluka Chottaudepur, Dist. Vadodara, with his wife and family and he was doing labour work. They were four brothers, Bhurlo being the eldest, then Gallabhai, next Sursing, and the youngest one being the complainant. Gallabhai was living with the complainant and Bhurlo and Sursing were living separately.
2.2 Before about one year, his brother Sursing eloped with one Surti, the sister of one Jandubhai Khumanbhai Dhanuk of his village. Before about a week, his brother Sursing came to the home of his sister Shantiben residing at Timla village. As Jandubhai Khuman, came to know about it, he went to village Timla and brought his sister Surti to his home at Simalkuva. However, Surti ran away from the house of her brother Jandubhai and went back to his brother Sursing, who went to Jambudiya, Talu. Morbi, District- Rajkot for doing labour work.
2.3 On 25th March 2005, the complainant and his wife Sharda were sitting outside their house and at that time, his uncle Kuchariyabhai Bhukhanbhai Dhanuk was coming to his home after collecting toddy from the palm tree which is situated in front of his house. At that time, Jandubhai Khumanbhai Dhanuk came with his bow and arrow and shot the arrow towards Kuchariyabhai Bhukhanbhai Dhanuk which hit on his temple on the left side of the head and he fell down. At that time one Khuman Thuthiyabhai, the accused no. 2 came with a Dingo [stick] in his hands and started abusing and was yelling to kill Kuchariyabhai. On seeing that Kuchariyabhai had been injured by an arrow, the complainant and his wife shouted for help as a result thereof, Gulab Lalu Dhanuk [ brother's son ], Nana Moti Rathwa [uncle], Mukam Ramsing [grand father] and other persons from the street viz. Kaliya Chiman Rathwa, Indrasing Nanaji Rathwa came. Thereupon, Jandubhai Khumanbhai Dhanuk and Khuman Thuthiyabhai ran away. Thereafter, Kuchariyabhai Bhukhanbhai Ghanuk was laid on a cot and the complainant and some other persons of the village, viz. Malsinh Jigda, Kaliya Chiman and Mukam Ramsing etc. lifted the cot and brought it to the road wherefrom the injured Kuchariyabhai Bhukhanbhai Dhanuk was taken to the hospital at Chottaudepur in the jeep of one Chhagganbhai of Khadakvada for treatment where he died during treatment.
3. Upon completion of the investigation, the investigating officer submitted charge sheet before the learned Judicial Magistrate First Class, Chottaudepur and on 2nd July 2005, the learned Judicial Magistrate having found that the case is exclusively triable by the Court of Sessions, committed the case to the Court of Sessions as provided under section 209 of the Code of Criminal Procedure.
4. The learned Sessions Judge framed the charge on 28th December 2006 at Exh.5. The statements of the accused was also recorded on 28th December 2006 and the accused pleaded "not guilty" and claimed for a trial.
5. Further statement of the accused was recorded on 2nd May 2007 whereby the accused substantially denied the material evidence produced against him.
6. The prosecution had examined the following witnesses in support of the prosecution case:
PW.
No.
Name of witness Exh No.
Kanubhai Malabhai Rathwa The Circle Inspector of Taluka Panchayat Office who prepared the map of the scene of offence.
Exh No. 8 2 Dr. Babulal Kalidas Patidar Medical Officer of Referal Hospital, Chotaudepur who initially treated the injured victim and later on conducted post mortem Exh No. 12 3 Idlabhai Maniyabhai Dhanuk Eyewitness to the incident and the person who lodged complaint before the Rangpur Police Station, Camp at Chhotaudepur Hospital.
Exh No. 16 4 Shardaben, wife of Idlabhai An eyewitness to the incident Exh No. 18 5 Sukhliya Kidiya Dhanuk Panch witness to inquest panchnama Exh No. 19 6 Indrasinh Nanla Panch witness to inquest panchnama, a witness who turned hostile in respect of statement given by him on 27th March 2005 before the PSI, Rangpur.
Exh No. 21 7 Karamsinh Chhotubhai Panch witness to the clothes worn by the deceased.
Exh No. 22 8 Bandariya Bhusariya Witness to the panchnama of the place of offence, who turned hostile.
Exh No. 24 9 Udhaliya Ramsing Rathwa Witness to the panchnama of the recovery of the weapon [bow], who turned hostile.
Exh No. 26 10 Devlabhai Alsinhbhai Dhanuk Witness to the panchnama of the recovery of the bow, arrow, and stick, who turned hostile.
Exh No. 28 11 Indrasinh Sataliya Rathwa Witness to the panchnama of the collection of blood stained soil from the scene of offence, who turned hostile.
Exh No. 29 12 Mahendrasinh Bahadursinh Solanki, the Investigating Officer Exh No. 30
7. The prosecution had produced the following pieces of documentary evidence in support of its case:
Sl.
No.
Description Exh.No.
Carbon copy of yadi for preparing map of the place of offense Exh.No.
Original map of the place of offense Exh.No.
Carbon copy of Wadi for post-Mortem Exh.No.
Inquest form Exh.No.
Original P.M. Report Exh.No.
Original complaint Exh.No.
Inquest Panchnama Exh.No.
Original Panchnama of clothes seized from the dead body after post-mortem Exh.No.
Original panchnama of the place of offence Exh.No.
Original arrest panchnama of the accused along with weapons and clothes worn.
Exh.No.
Hospital Vardhi sent to the PSO Chottaudepur regarding death of Kuchariya Bhukhanbhai Dhanuk died during treatment at Referal Hospital, Chottaudepur Exh.No.31 12 Original yadi for investigation of offence Exh.No.
Carbon copy of special report Exh.No.33 14 Carbon copy of Yadi for filing inquest Exh.No.34 15 Carbon copy of dispatch note regarding forwarding muddamal to the FSL.
Exh.No.35 16 Original receipt of FSL acknowledging muddamal Exh.No.36 17 Original FSL report Exh.No.37 18 Xerox copy of Notification regarding prohibition of arms Exh.No.38 19 Closing pursis submitted by the learned APP on behalf of the prosecution.
Exh.No.
8. After the closure of evidence of the prosecution, the statement of the accused under section 313 of the Criminal Procedure Code had been recorded and the accused declined to give any evidence of his own.
9. Ultimately, the learned Sessions Judge, by the order impugned herein, held that it was established from evidence on record beyond reasonable doubt that Jandubhai Khumanbhai Ghanuk, the accused No.1, committed murder as indicated hereinabove and therefore, convicted him for an offence punishable under section 302 of the Indian Penal Code and sentenced him as stated hereinabove.
10. The accused No.2, Khumanbhai Thuthiyabhai Dhanuk was, however, acquitted of the charge framed against him for an offence punishable under sections 302 and 504 of the Indian Penal Code and section 135 of the Bombay Police Act.
11. Being dissatisfied, the accused No.1, Jandubhai Khumanbhai Ghanuk, has come up with the present appeal.
12. Mr.
Dave, the learned advocate appearing for the appellant has vehemently contended before us that the learned Sessions Judge committed substantial error, both of law and fact, in holding that the appellant was guilty of murder by solely relying upon the evidence of the two alleged eyewitnesses, viz, PW.3 Idalbhai Maniyabhai Dhanuk and PW.4 Shardaben Idalbhai. Mr. Dave contended that it would appear from the evidence adduced by these two witnesses that there statements were conflicting. For instance, Mr. Dave has drawn our attention to the fact that while PW.3 Idalbhai Maniyabhai stated in his deposition that his wife, PW. 4 Shardaben, was in the house and was cooking, the said PW.4 in her evidence has deposed that she was near the palm tree with the deceased. Mr Dave further pointed out that PW.4, Shardaben, in her deposition specifically stated that the deceased was taken direct from the scene of offence to the hospital while PW. 3 Idalbhai Maniyabhai in his deposition said that the deceased was first taken to his house and thereafter, to the hospital. Mr. Dave further contends that the house of PW.3 and PW.4 is situated at least 50 metres away from the scene of offence and PW.3 has also admitted in his cross-examination that he was in his house. Such being the position, according to Mr. Dave, it was absurd to suggest that those two persons had witnessed the incident, which has occurred on the road, which is more than 150 feet away from the house. Mr. Dave further contends that so many persons were at the spot immediately after the incident but the prosecution did not examine any of them in support of the allegation against his client. Mr. Dave further contends that the bow recovered from the house of the appellant is one, which is available with all the persons in that area as they are adivasi.
Mr. Dave pointed out that no blood mark has been seen from the apparel put on by the accused at the time of committing the alleged offence, and not only that, even the bow also did not contain any trace of blood. He further contends that the recovered arrow was not the one, which was actually shot on the deceased by the real culprit. Mr. Dave further contends that even the prosecution did not prove the motive of the murder. He submitted that merely because the sister of the accused ran away with the nephew of the deceased one year ago, such fact cannot be a ground to kill the father's elder brother of the person with whom his sister eloped. There is no evidence to show that there was any enmity between these two persons. Mr. Dave, therefore, prays for setting aside the order of conviction and sentence recorded against the appellant.
13. Mr.
Rawal, the learned Additional Public Prosecutor appearing on behalf of the State has, however, defended the prosecution case and submitted that the learned Sessions Judge, on consideration of the evidence on record, having found PW.3 and PW.4 as trustworthy, this Court should not upset such findings by disbelieving those two witnesses. According to Mr. Raval, the inconsistencies pointed out by Mr. Dave are of minor nature, which cannot affect the evidence adduced by those two witnesses. He, therefore, prays from dismissal of the appeal.
14. Therefore, the only question that arises for determination in this appeal is whether the learned trial Court was justified in finding the appellant guilty of murder based on the evidence adduced in this case.
15. In order to appreciate the respective contentions of the parties, we first propose to consider the evidence given by the two alleged eyewitnesses, viz. PW.3 Idalbhai Maniyabhai Dhanuk and his wife, PW.4 Shardaben.
16. In his complaint Exh.17 lodged by the PW.3, he has stated that on 25th March 2005 at about 6.00 PM he and his wife Sharda were sitting outside their house and at that time, his uncle [father's elder brother] was coming towards his home after procuring toddy from the palm tree situated in the front side of his house. At that time, the appellant came with a bow and arrow, came near his uncle, loaded the arrow in the bow and shot towards his uncle, which hit on the temple on the left side of his head. His uncle fell down. At that time, the accused No.2 came with a stick in his hand and started abusing his uncle and was shouting to kill his uncle. This witness has further stated that as the arrow had struck to his uncle, this witness and his wife who were near his house started shouting and hearing their shouts, his brother's son Gulab Dhanuk, his uncle Nana Noti Rathwa, his grandfather Mukam Ramsing Rathwa and other persons who were on the street namely Kaliya Chiman Rathwa and Indrasing Nanaji Rathwa arrived at the place. The appellant as well as the accused No.2 ran away. Thereafter, his uncle was placed on a cot and the said witness along with Malsing Jigda, Kaliya Chiman and Mukam Ramsing etc. lifted the cot and brought his injured uncle to the road from where he was taken to the hospital at Chhotaudepur in the jeep of Chhaganbhai of Khadakvada for treatment, where he died during the treatment.
16.1 In his examination-in-chief, this witness has stated that the incident occurred at 6.00 PM. At that time, the deceased went for extracting toddy from palm tree. Thereafter, the deceased was coming towards the house of this witness and at that time, the appellant came with a bow and arrow. This witness has specifically stated in his deposition that at that time, he and his wife Sharda, PW.4, were present at their home. According to the said witness, the accused shot the arrow. He had seen the arrow, which was shot by the appellant. He has further stated that his house was 50 metres away from the place of occurrence and he saw the appellant coming with the bow and arrow and shooting the arrow from a distance of 2 to 3 ft. This witness has further stated that after shooting the arrow, the appellant ran away. Thereafter the accused No.2, the father of the appellant, came with a stick in his hand and shouted that the victim was to be killed.
16.2 In his examination-in-chief, however, a new story was made out by the PW.3 that after his uncle was injured by the arrow and fell down, he was lifted and brought to the house of this witness.
16.3 In his examination-in-chief he has identified the muddamal articles No.4 and 5, the bow and arrow, to be the actual weapons used for killing the victim. He has also identified the stick, which was allegedly brought the accused No.2.
16.4 In his examination-in-chief, this witness has further stated that the reason for killing his uncle was that Sursing, brother of this witness, eloped with Surtiben who is the sister of the accused No.1 and for that reason, he has killed the victim, who is the elder brother of their father.
16.5 In his cross-examination, this witness has stated that in his complaint, he had stated that the arrow hit on the right part of the head of the deceased. It is further stated by this witness that the incident took place on the day of Holi festival and when the incident took place, after lighting the Holi fire, the villagers were dancing. He has further stated that it is true that he was at his house when the incident took place and at that time, his wife, PW.4 Shardaben, was cooking. It is required to be noted at this stage that in the complaint, it was stated that he and his wife Sharda were sitting outside their house.
17. The other eyewitness, PW.4 Shardaben has stated a different story in her examination-in-chief. She has stated that at the time of the incident, she was near the deceased and the deceased was coming from the palm tree and the arrow hit on his temple. She has stated that the appellant shot the said arrow. She has further stated that her husband, the PW.3, was with her at that time.
18. From the above deposition of PW.4, it thus appears that at the time of occurrence of the incident, this witness as well as her husband, the PW.3 were with the deceased whereas the PW.3 in his deposition has stated that he was in his house and PW.4 was cooking at the relevant point of time. Moreover, the PW.4 has never stated in her deposition that the deceased was brought to their house, but on the other hand, she stated that the deceased was brought to the road and then taken to the hospital in a jeep.
19. From the aforesaid evidence given by the two alleged eyewitnesses, we find that both the witnesses have stated that their house was situated 50 metres away from the place of incident. The time of occurrence was 6 O'clock in the evening. The incident occurred on the day of Holi festival and after lighting Holi fire, the villagers were dancing. If we accept the statement of PW.3 that his wife was cooking in his house, then the evidence of PW.4 cannot be believed, as according to her statement, she was present with the victim at the place of occurrence along with her husband, the PW.3. At this stage, it is also required to be noted that in the complaint, the PW.3 has stated that at the time of the incident, the complainant PW.3 and his wife PW.4 Sharda were sitting outside their house. PW.3 has also stated in his cross-examination that he was at his house, and not outside his house. From the map of the area, Exh.10, we find that the road leading from the house of PW.3 and PW.4 towards the place of incident is not a straight one and near the place, there are several trees. We, therefore, find substance in the contention of the learned counsel for the appellant that it is very difficult to see from a distance of 50 metres a person who was coming with bow and arrow and shooting the deceased with the arrow from a distance of just 2 ft. We also find that the own house of the victim was within 10 ft. of the place of the incident but nobody has come forward to depose though all of them, according to PW.3 and 4, came out. The incident having occurred on a road, and at a time when people of the village were dancing after lighting the Holi fire, we are surprised to find that no other person has come to depose in support of the prosecution case. In this case, there was no bloodstain in the wearing apparel of the appellant but that could be possible because only one arrow was shot from a distance. We, however, find substance in the contention of the learned counsel for the appellant that the incident having occurred in an Adivasi area, the presence of bow and arrow at the residence of such persons of Adivasi community is not unnatural. Therefore, mere recovery of the bow from the house of the appellant will not prove that he actually shot the arrow from that bow.
20. The learned Sessions Judge has disbelieved the presence of the accused No.2 and has acquitted him, and the State has not preferred any appeal against his acquittal if the presence of the accused no. 2 is not believed from the same pieces of evidence, we fail to appreciate why only a part of the deposition should be believed.
21. We are also not impressed by the submission of Mr. Rawal that the fact that the sister of the accused had eloped with the nephew of the victim more than one year ago can be the motive for the murder, when there is evidence on record that two days prior to the incident, his sister came in the village and thereafter, she went back to Rajkot where she was living with the nephew of the deceased. There is no evidence on record to indicate that the victim instigated his nephew for eloping with the sister of the appellant.
22. On consideration of the entire material on record, we find that from the above conflicting evidence of the two alleged eyewitnesses, PW. 3 and PW.4, it is not possible to believe that they had actually seen the victim being shot by the appellant. On a festival day, in an open place, the victim having been shot, we are unable to accept the contention of the prosecution that there were only those two eyewitnesses. We have also pointed out the various inconsistencies in the evidence of PW.3 and PW.4 and from the above, in our opinion, no reasonable individual, having regard to section 3 of the Evidence Act, would believe the evidence given by those two persons.
23. We thus find that it is a fit case where we should set aside the order of conviction and allow the appeal. We, consequently, set aside the order of conviction and sentence recorded by the learned trial Judge against the appellant vide order dated 16th November 2006 passed by the Additional Sessions Judge, Fast Tract Court No.1, Chottaudepur, Dist. Vadodara in Sessions Case No. 45 of 2006. The appellant is acquitted of the charges levelled against him. The appellant is ordered to be set at liberty forthwith, if not required in any other criminal case. Fine, if paid, be refunded to the accused.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA.
J.] Top