(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of the judgment and order rendered by Sessions Court, Bharuch at Rajpipla, in Sessions Case No. 72/2005 dated 15.12.2005. Original accused no. 1 – Gulji @ Ambalal Chiman Tadavi is the appellant in Criminal Appeal No. 86/2006, whereas, original accused no. 2-Ashvinbhai Nanubhai Tadavi is the appellant in Criminal Appeal No. 87/2006. Since these two appeals arise out the same judgment and order, they are heard and disposed of by this common judgment, and the appellants are referred to in this judgment by their original status of accused.
2. As per the prosecution case, the incident occurred in early morning hours, i.e. 2.00 A.M. Of 17.4.2005 at village Mojra of Nandod taluka, District Narmada, outside the house of Ishwarbhai Manabhai Tadavi. As per the prosecution case, two accused persons went to the house of Ishwarbhai Manabhai Tadavi. At the relevant time, A-1 was armed with Axe. Ishwarbhai was sleeping just outside his house along with his family members. A-1 inflicted an Axe blow on the face of deceased Ishwarbhai Manabhai. The relatives of the deceased, who were sleeping nearby, woke-up and accused persons ran away. It is the case of the prosecution further that A-2, at the time of the incident, had caught hold of the deceased with his legs, when A-1 had inflicted the Axe blow. As per the prosecution case, the incident was seen by PW-1 – wife of the victim, who was sleeping next to him. The incident was also seen by PW-2 daughter of the victim, who was also sleeping there at the distance of about five feet. Rest of the witnesses, i.e. PW-3,4,6 and 7 were also sleeping nearby, but they woke-up late by fraction of moment and it is a matter of doubt as to whether they really could have seen the incident. As per the prosecution case, PW-1 lodged the FIR with Garudeshwar Police Station, on the basis of which, offence was registered and investigated and ultimately, charge-sheet was filed in the Court of learned Judicial Magistrate, First Class, Rajpipala, who in turn, committed the case to the Court of Sessions and Sessions Case No. 72/2005 came to be registered.
3. The charge was framed against the accused persons at Exh. 10. The accused persons pleaded not guilty to the charge and came to be tried. At the end of the trial, the trial Court came to the conclusion that the prosecution was successful in establishing the charges against the accused persons and convicted them of the offence of murder of victim Ishwarbhai Manabhai Tadavi. They have been convicted under sec. 302 read with sec. 114 and 34 of IPC and sentenced to imprisonment for life with a fine of Rs. 250/-each, in default, to undergo further S/I for five days. However, they have been acquitted of the offence punishable under section 201 read with sec. 114 and 34 of IPC.
4. Learned advocate Ms. Sadhna Sagar for the appellants and learned APP Mr. Neeraj Soni for the respondent-State are heard.
5. According to Ms. Sagar, learned advocate appearing for the appellants, though the prosecution has projected PW-1, PW-2, PW-3, PW-4, PW-6 and PW-7 as eye witnesses, they could not have been eye witnesses to the incident. She submitted that PW-2, PW-3, PW-4, PW-6 and PW-7 were told by PW-1 as to what had happened, that is the story of the witnesses. She submitted that it emerges from the evidence of PW-1 that immediately on seeing the assault, she became unconscious and regain consciousness only after two to three hours, and then said about what she had seen. On the other hand, the other witnesses claimed that upon hearing shouts, they were awaken and were told about the incident by PW-1 immediately. Ms Sagar, therefore, submitted that either of the stories is not correct. If PW-1 became unconscious and regain consciousness after two to three hours, the version of other witnesses that they were told about what had happened by PW-1 would not be correct, and therefore, the entire prosecution case would collapse.
5.1 Ms. Sagar submitted that no overt-act is attributed to A-2 by PW-1, who is the eye witness, and whatsoever is attributed by remaining witnesses is of no value because they learnt about the episode through PW-1 only, and therefore, the trial Court erred in convicting the appellants. The appeals may, therefore, be allowed, conviction may be set aside and appellants be set at liberty.
6. On the other hand, learned APP Mr Soni submitted that all the witnesses were in the periphery of the place of incident and when PW-1 could have seen occurrence, the remaining witnesses could also have seen the occurrence, and as such, the contention that PW-1 is the only eye witness, is not correct. Learned APP has taken us through the evidence of witnesses to indicate that at least PW-1 and PW-2 can be accepted as eye witnesses to the incident. Similarly, PW-5, PW-
6 and PW-7 can be considered to have not seen the incident and PW-4 though claims to be eye witness, there is a possibility of his having exaggerated certain aspects. Learned APP submitted that quality of evidence of PW-1 and PW-2 is of sterling quality and on the basis of that evidence only, the conviction is recorded, and therefore, both the appeals may be dismissed.
7. We have considered rival submissions and have examined records and proceedings in light of their submissions.
8. We find that the incident occurred in wee hours of early morning of 17.4.2005. That was a summer season and prosecution case that the deceased and his family members were sleeping just outside the house, merits acceptance and the same gets support from the panchnama of place of incident Exh. 36, so also from the map Exh. 33 showing the place of incident and prepared on the basis of panchnama of place of incident. The map is picturised and well prepared. The house of the victim is facing west and the place of incident is just outside the house.
9. In such wee hours, when everybody were sleeping, both the accused persons had gone to the house of the victim and assaulted victim Ishwarbhai Manabhai Tadavi with an Axe. Axe blow is given on right side of the face and the injuries extend from ear to the mandible. The victim died on account of profuse bleeding from the injuries as is certified by doctor in the post- mortem notes and has deposed to that effect in his evidence at Exh. 60.
9.1 Evidence of PW-1 Revaben Ishwarbhai Tadavi Exh.
14 if seen, would make it clear that there is no scope to doubt her evidence as an eye witness. She was sleeping next to her husband on the ground, whereas, the victim was sleeping on a cot. At about 1.00 O'clock in the night, A-1 came to the house of the victim and pelted a small stone at Varshaben- daughter of the victim, probably, with a view to ascertain that everybody is in fast sleep or not. PW-1 and her husband victim Ishwarbhai woke-up and drew away A-1. Thereafter, again at about 2.00P.M. in the night, A-1 and A-2 came to the place and A-1 inflicted an Axe blow on right cheek of the deceased. The witness states that she woke-up on hearing the shouts, so also her daughter Varshaben and son Girish. Other family members also got assembled, whereas, both the assailants ran away. The witness has been cross- examined and in para-6 of her cross-examination, she says that she saw her husband having suffered injuries on right cheek. She had also stated that it is true that after seeing her husband in injured condition, she raised shouts, as a result of which, her daughter Varshaben, son Girish and Pravin and others also woke- up, and thereafter, she told them that what had happened. In para-11 of the cross-examination, she says that she became unconscious and that there was no light in the house. She had stated that she became unconscious immediately on seeing the incident and regained consciousness after two to three hours, and thereafter, she narrated the incident to the people who were present there. It was, therefore, argued by Ms. Sagar that she could not have seen the incident and that the version of other witnesses that upon hearing the shouts, they woke-up and went to the place, where they were told about the incident by PW- 1, would be still weaker.
9.2 In the above context, it would be appropriate to observe that other witnesses were not sleeping at a distance, but they were sleeping almost next to each other, as can be seen from their respective evidence, and that aspect is not disputed by the defence either. Differently put, even if, we accept the argument of Ms. Sagar that other witnesses could not have been eye witnesses, the evidence of PW-1 is strong enough to connect A-1 with the offence. She, of course, admits the suggestion that she saw her husband suffering injuries on the right cheek, and thereafter, she raised shouts and upon hearing shouts, daughter Varshaben, son Girish, Pravin, Arvind and others also came there and they were told about the incident. In para-11 also she admits the suggestion that she became unconscious after seeing the occurrence. Therefore, there is no need for any imagination to hold that at least PW-1 is an eye witness to the incident. Her presence at the place is natural and she has no reason to falsely implicate A-2 whose presence she definitely asserts, though she does not attribute any overt-act.
10. PW-2, Varshaben, daughter of victim and PW-1 was sleeping next to her mother, PW-1, and she also says that she woke-up on hearing shouts and saw the incident. She specifically involves A-2 by saying that he had caught hold of the legs of the victim and he was seen in that condition when she saw him for the first time. Her cross-examination does not reveal anything, except that she had affair with A-1, which was not approved by her father and he had rebuked her. She admits that her parents, therefore, were not in a good terms with A-1. The evidence of PW-3 Girishbhai Ishwarbhai Tadavi Exh. 22, PW-6Arvindbhai Ishwarbhai Tadavi Exh. 27 and PW-7Tinuben Pravinbhai Tadavi Exh.
28 would reveal that they were late by fraction of moment, and therefore, what they saw was a stint immediately after assault or occurrence. They do not say that they saw A-1 inflicting the blow. They saw A-
1 with Axe in his hand and A-2 near the legs of the deceased and they saw both of them running away.
11. From the above evidence, it is clear that at least PW-1 and PW-2 are the persons who have seen the incident. PW-1 has not attributed any role to A-2 but does speak of his presence, whereas, PW-2 specifically attributes A-2 to have caught hold of the legs of deceased and A-1 having assaulted the deceased.
12. Enmity is sought to be proved. As is well established that this is a double edged sword just as it provides a motive for the prosecution to falsely implicate the accused, it also provides motive for the accused to commit the crime. In above context, our attention was drawn to the evidence of PW-1 where she admits in cross-examination that the FIR was lodged after deliberation and on a doubt that because relations were strained, it could have been A-1. We have closely scrutinised the evidence of PW-1 and we find that the witness is coming from a rustic society or may be uneducated lady coming from tribal area and we have to make a discount in her ability to understand the implications and repercussion of smartly couched questions in the cross-examination and it emerges from the evidence of this very witness that she did not have that high IQ to understand such smart questions because at one stage she has admitted that A-1 was not at the place of incident and had gone to Surat, but realising the implications of that question and answer in the very next breath, she said that A-1 was very much present. Therefore, admission during the cross-examination by PW-1 that the FIR was lodged late after deliberation is only a mistake on her part because she has been put this question consistently and probably feeling that she is bound to answer and may be because of some fear of being branded false witness, she has answered the question. In this context, we may refer to the decision of the Apex Court in the case of State of U.P. vs. Anil Singh, reported in AIR 1988 SC 1998 (para-15). In the course of exercise of separating truth from untruth, Court has to be mindful about the fact that witnesses coming from rural area are not as competent as lawyers cross- examining them and some concession or discount has to be made while assessing their evidence.
13. The presence of A-2 gets established through the evidence of PW-1 as well as PW-2. PW-1 speaks of presence of A-2, whereas, PW-2 attributes specific role to him of having caught hold the deceased by legs. Remaining witnesses, PW-3, PW-6 and PW-7, in terms say that they saw A-2 near legs of the deceased which confirms the version of PW-2 that he had caught hold of the legs of the deceased and that the witness saw him running away along with A-1.
13.1 A-1 did have strained relations with the victim, but there is no attribution to any such strained relations between victim and A-2, still he goes to the house of the victim along with A-1 and actively participated in the incident. Therefore, there is hardly any scope to consider his case differently.
14. Foregoing discussion would show involvement of both the appellants in the incident having been established by the prosecution beyond any reasonable doubt. The trial court was justified in recording the conviction and we are in broad agreement with the reasonings recorded by the trial Court. We, therefore, dismiss both the appeals.
[A.L. DAVE, J.] [PARESH UPADHYAY, J.] mandora/