(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two criminal appeals arise out of the judgment and order rendered by the Sessions Court, Surat in Sessions Case No. 136/2001 on 6th October, 2004.
2. The appellant in Criminal Appeal No. 1985/2004 Ashok Maganbhai More was accused no. 1, whereas, respondent Dhansukhbhai Mangubhai Rathod in Criminal Appeal No. 861/2005 was accused no. 2 before the Sessions Court. Both of them were charged for having committed murder of one Amrutbhai Ramdas and having caused hurt to witness Prahladbhai. Since these two appeals arise out of the same judgment and order, they are heard together and disposed of by this common judgment. For the sake of convenience, the appellant in Criminal Appeal No. 1985/2004 and respondent in Criminal Appeal No. 861/2005 are addressed to by reference to their original respective accused number before the trial court in this judgment.
3. As per the prosecution case, the incident occurred on 28.4.2000 at about 2.30pm, near Sheri No. 3-4 of New Colony at Mandarwaja area of Surat, where,
Amrutbhai, whereas, A-2 gave two hockey blows to deceased Amrutbhai on his back. As per the prosecution case, the incident was seen by PW-3 Dadabhai, PW-8 Chandrakant @ Chandu Mohanbhai and PW-2 Prahladbhai. Upon intervention by Chandrakant @ Chandu Mohanbhai, A-2 inflicted hockey blow to him, whereas, upon intervention by Prahladbhai, an injury with gupti was caused on his palm by A-1.
3.1 Prahladbhai lodged FIR with Salabatpura Police Station, Surat, on the basis of which, offence was registered and investigated. On completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Surat, who in turn, committed the case to the Court of Sessions and Sessions Case No. 136/2001 was registered. Charges were framed at Exh.6 against both the accused, to which they pleaded not guilty and came to be tried.
4. At the end of trial, the trial court acquitted A-
2 and convicted A-1 for the offence punishable under section 302 and sentenced him to imprisonment of life with fine of Rs. 500/-, in default, to undergo further sentence of one month. A-1 also came to be convicted for the offence punishable under section 324 of IPC and sentenced to R/I for six months with fine of Rs. 500/-, in default, to undergo further sentence of one month. Hence, these appeals.
5. We have heard learned advocate Ms Sadhana Sagar for appellant in Criminal Appeal No. 1985/2004, learned advocate Mr. Sameer Dave for the respondent in Criminal Appeal No. 861/2005 and Mr. Neeraj Soni learned APP representing the State in both the appeals.
6. Learned advocate Ms. Sagar submitted that first informant PW-2 Prahladbhai and PW-3 Dadabhai claimed to be eye witnesses but they could not have been eye witnesses to the incident. In support of her say, she submitted that apart from the place of incident, blood was found near the house of complainant which falsify the story of Dadabhai that the deceased was taken to the hospital directly. It is also submitted that the group of blood found on gupti is not that of the deceased. It is also contended that the clothes recovered from the dead-body do not carry corresponding cut marks attributable to the gupti blows given by A-1, and as such, criminal appeal preferred by A-1 may be allowed.
6.1 Learned advocate Mr. Sameer Dave representing the respondent in Criminal Appeal No. 861/2005, submitted that the evidence on record has been appropriately appreciated by the trial court and the view taken by the trial court can not, by any stretch of imagination, be considered as a view which is impossible or legally perverse. This Court, therefore, may not interfere with the judgment regarding the acquittal of A-2.
7. Learned APP Mr. Soni submitted that the incident has been witnessed by the witnesses examined by the prosecution. The only discrepancy that is sought to be pressed in service is the finding of blood near the house of complainant in addition to the blood found at the place of incident, and it is sought to be placed in service that version of Dadabhai about having taken the deceased to the hospital forthwith after the occurrence would stand falsifed, cannot be accepted or may not be accepted. The discrepancy at the best is in respect of an event or development subsequent to the occurrence. The evidence of eye witnesses is consistent about the main incident of assault by A-1 and A-2. Mr. Soni submitted that A-2 is alleged to have given hockey blow to the deceased and corresponding injuries are found on back of the dead- body, and therefore, A-2 is wrongly acquitted. He, therefore, submitted that the State appeal against the acquittal may be allowed and the appeal against the conviction may be dismissed.
8. The medical evidence in form of deposition of PW-
1 Dr. Satishkumar Puranchand Exh. 11 and post mortem note Ex. 12, leave no room for doubt that death of Amrutbhai Ramdas was homicidal.
9. First informant Prahladbhai is examined at Exh. 14, where he says that he was at home, he heard hubbub, he, therefore, went out and found that a crowd had assembled. He found his brother Amrutbhai lying on the ground. A-1 had a gupti in his hand and A-2 had hockey in his hand. He went to scold A-1, he was therefore, assaulted upon and he suffered injury on right thumb. The accused persons then went away. He deposes about the incident in question, where there was some altercation and dispute was settled. Witness has been subjected to cross-examination and he has replied to the questions put to him but nothing is elicited that may help the defence. He does admit that after the victim was taken to hospital, the details of incident were given to him by Chandubhai Mohanbhai PW-8, but the fact remains that first informant reaches the place of incident soon after the incident, finds A-1 armed with gupti and A-2 armed with hockey, and upon his intervention, he was assaulted upon by A-1 where he suffered injury on his thumb. Therefore, technically he cannot be considered to be an eye witness of the incident but he does speak about the presence of A-1 and A-2 at the place of incident with deadly weapons.
10. The evidence of PW-3 Dadabhai is at Exh. 16. He is an eye witness to the incident. He says that A-1 came with gupti and A-2 came with hockey. He attributes A-2 two blows to the deceased, and then he attributes that A-2 instigated A-1 and as a result of which, A-1 inflicted knife injury on the deceased. He is cross-examined and he admits that the story about A-2 having instigated A-1 was not made by him in his statement before the police. Therefore, instigation part is a clear improvement in the evidence of this eye witness. The other cross-examination though lengthy, reveals no fruits for the defence so as to create a doubt in the veracity of the version of this witness or about his being an eye witness.
11. PW-8 Chandubhai Mohanbhai is examined at Exh. 27. He is declared hostile by the prosecution.
12. The discussion in respect of the evidence would go to show that PW-3 Dadabhai being an eye witness is a fact which cannot be doubted. He involves A-1 in the incident. He also tries to involve A-2 which is an improvement in his story and therefore, the trial Court was justified in discarding that part of his evidence while appreciating the evidence.
13. The evidence of Dadabhai has been supported by Prahladbhai, who reaches the place of incident soon after the occurrence would show involvement of A-1 in the incident. So far as A-2 is concerned, the instigation part is found to be not believable and use of hockey by him is also not supported by medical evidence, except where the doctor says that abrasion on the back of the dead-body is possible with hockey. However, the injury on person of Prahladbhai is duly proved through his evidence as well as the evidence of doctor. The said injury is attributed to A-1 armed with gupti, and therefore, the version of the trial court of convicting A-1 for the offence punishable under section 302 and 324 of IPC merit confirmation. Similarly, acquittal of A-2 is also justified and on stray sentence by medical officer that injury on back of the dead-body is possible with hockey, acquittal recorded by the trial Court cannot be set aside and altered into a conviction because the view taken by the trial Court is not impossible one. In our opinion, therefore, both the appeals must fail and are dismissed.
[A.L. DAVE, J.] [PARESH UPADHYAY, J.] mandora/