(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of two convicted persons and is directed against the order of conviction dated February 8, 2008 passed by the leaned Additional Sessions Judge, 4th Fast Track Court, Panchmahals at Godhra, in Sessions Case No. 16 of 2007, by which the learned Sessions Judge found the appellants guilty under the provisions of Sections 302, 324, 504 and 114 of Indian Penal Code ["IPC" for short] and also under Section 135 of the Bombay Police Act.
2. The relevant part of the order of sentences imposed by the learned Sessions Judge is quoted below.
" Accused No.1 Chimanbhai Vajabhai Pagi, Resident of Vangarva, Tal. Ghoghamba is ordered to undergo imprisonment for life and fine of Rs. 100/- [Rupees One Hundred only] in default of payment of amount of fine he is further ordered to undergo simple imprisonment of 10 [ten] days for the offences under Sec. 302 of the I.P.C.
Accused No.1 is hereby ordered to undergo simple imprisonment of one month and fine of Rs.50/- [Rupees Fifty only] in default of payment of amount of fine the accused is further ordered to undergo simple imprisonment of 07 [seven] days for the offences under Sec.504 of I.P.C.
Accused No.2 Abhesinh Vajabhai Pagi [Chauhan] Resident of Vangarva, Tal. Ghoghamba is ordered to undergo imprisonment for life and fine of Rs. 100/- [Rupees One Hundred only] in default of payment of amount of fine he is further ordered to undergo simple imprisonment of 10 [ten] days for the offences under Sec.302 read with Sec.114 of the I.P.C.
Accused No.2 is hereby ordered to undergo simple imprisonment of one month and fine of Rs. 50/- [Rupees Fifty only] in default of payment of amount of fine the accused is further ordered to go simple imprisonment of 07b [seven] days for the offences under Sec.504 of I.P.C.
Accused No.2 is hereby ordered to undergo simple imprisonment for one month for the offences punishable under the provisions of Sec. 323 of the I.P.C. And to pay fine of Rs. 50/- [Rupees Fifty only] and in default of payment of amount of fine he is ordered to undergo further simple imprisonment of 07 [seven] days.
Accused No.2 is hereby ordered to pay fine of Rs. 50/- [Rupees Fifty only] for the offences under Sec. 135 of B.P. And in default of payment of amount of fine he is ordered to undergo further simple imprisonment of 07 [Seven] days.
Both the accused shall observe the above sentences all together.
Accused to be given benefit of set off for the time spent in jail by them as undertrial prisoners."
3. The charges against the appellants framed by the learned Additional Sessions Judge are quoted below:
"[1] On 22.10.2006 at 23.00 Hours at Vangarva Taluka Ghoghamba, the complainant lady of this case Lalitaben wife of Gulabsinh Laxmansinh, residing at Mahuliya, Taluka Godhra had come with her deceased husband and her children to her parental house at village Vangarva to celebrate Jayni and at the time of night, as the Jayni [Festival on the next day of the new year during Diwali festivals] was scheduled at the temple of Bhathiji situated near the house of the parents of the complainant lady, the complainant lady, the deceased Gulabsinh and the nearby residents were all sitting; at that time you, the accused had also come to that programme; at that time, at about 10.30 P.M., Ajmalsinh, the brother of the complainant lady felt the presence of the God [Dev] in his body and he started shaking and swinging his head and, therefore, you the accused persons started abusing him saying how can he feel the presence of the God[Dev] and by saying so, you the accused persons started quarreling; thereupon, the other persons who were present there asked you to leave the place and, therefore, you the accused persons had gone away towards the shop and after going there, as you started abusing more, the persons who were present there told you not to utter abuses and thereupon, you had hidden yourself; that despite lapse of half an hour when you did not return back, the father of the complainant and other persons went in search of you and as they also did not return back in spite of lapse of half an hour, the deceased and the complainant had gone in search; at that time, you the accused who were hiding in the field of Tuver, had suddenly come out and you the accused No.1 Chimanbhai Vajabhai had inflicted two blows of knife that was in your hand upon the deceased Gulabsinh Laxmansinh Patel in quick succession on the upper part of his right and left side of the chest, and third blow was inflicted on the left side of the waist of the deceased and thereby, you the accused No.1 caused death of the deceased Gulabsinh on the spot and thereby have committed murder; at that time when the complainant lady intervened to rescue the deceased, you the accused No.2 Abhesing had given fist and kick blows to the complainant and thereby abetted each other in the commission of the above offence; moreover, you the accused persons, by violating the Notification of the Additional District Magistrate, Panchmahal, Godhra regarding prohibition of arms, in public, have committed the offences punishable under the provisions of Sec. 302, 323, 504 and 114 of the Indian Penal Code and Sec. 135 of the B.P. Act within the jurisdiction of this Court."
4. The case made out by the prosecution may be summed up thus:
4.1 The complainant, namely, Lalitaben, the widow of the deceased Gulabsinh Laxmansinh Patel, lodged a complaint before the P.S.I., Rajgadh Police Station on October 23, 2006 stating that on October 22, 2006 at about 6.00 hrs, she, her husband [the deceased] and her children went to reside at her parental house in her village Vangarva for the Jayani programme. At night, after taking the dinner and after completion of the household works, they were sitting as there was a Jayani programme at the temple of Bhathiji situated near their house.
4.2 At about 10.30 pm, her brother, Ajmal, felt presence of the God in his body and he started shaking and swinging his head under the influence of the God. At that time, Chimanbhai Vajabhai Pagi and Abhesinh Vajabhai Pagi, both residents of village Vangarva [the accused persons] started abusing Ajmal and said that it was impossible that the God could come in his body and by saying so, they started quarreling and abusing the other persons who were present at the said place. Those persons asked the said Chimanbhai Vajabhai Pagi and Abhesinh Vajabhai Pagi not to speak in such insulting language and to leave the place. Accordingly, both these accused persons had gone towards the shop of Gulabbhai Gobarbhai Patel by using offensive language and from there, they started abusing vociferously in the darkness of the night. In view of such fact, from the temple, the father of the complainant, namely, Gopalbhai Andabhai Patel and Badharbhai Mansinh and other persons went to the said side and told both the accused persons not to use such insulting language and after Ajmalbhai, the brother of the complainant had also gone towards that side, both the accused persons had hidden themselves in the agricultural land in the crops of Tuver. In spite of half an hour being lapsed, when all these persons did not return back, the complainant and her husband Gulabsinh had gone towards the agricultural land from the house of her parents in search of those persons. At that time, when they were going on the road, both the accused persons came out from their hidden place of Tuver crops. The accused Chiman Vaja had a knife in his hand by which he inflicted two blows upon the left side of the chest of the husband of the complainant and thereafter, the accused inflicted third blow on the back of the husband of the complainant. At that time, when the complainant tried to intervene in order to rescue the deceased, the accused no.2 gave her fist and kick blows, as a result of which, she started shouting. Her father Gopalbhai, brother Ajmal, Badharbhai and other persons gathered over there and the accused persons ran away from the farm with the knife.
4.3 As her husband was attacked and injured with knife, they were all preparing to take him to hospital, but within a short period, he expired on the spot. Upon the complaint being lodged before the P.S.I., Rajgadh Police Station, the offence has been registered against the accused persons being Ist CR No. 127 of 2006 under the provisions of Section 302, 323, 504 and 114 of IPC and also under Section 135 of the Bombay Police Act.
4.4 The investigation of the above case was entrusted to P.S.I. Shri Arjunsinh Ratansinh Parmar, who executed an inquest panchnama of the dead body and seized muddamal articles and sent the same to the F.S.L. for analysis. He also executed a panchnama of the spot of the offence and also recorded the statements of the relevant witnesses. As there was ample evidence against the accused persons, he filed charge-sheet against them under the aforesaid sections before the Judicial Magistrate First Class, Halol which was registered as Criminal Case No. 2 of 2007.
4.5 The J.M.F.C., Halol, however, committed the case to the Court of Sessions under Section 209 of the Code of Criminal Procedure, 1973.
4.6 The accused persons pleaded innocence and claimed to be tried.
4.7 The prosecution examined the following witnesses in support of its case.
PW No. Name of the witness Exh. No. 1 Lalitaben Gulabsinh Patel Complainant and Eye-witness 25 2 Jayantilal Kalidas Tailor Panch witness of panchnama of seizure of clothes of the deceased 27 3 Balvantsinh Bhurabhai Bariya Panch witness of inquest panchnama 30 4 Mohanbhai Mulabhai Pagi Hostile Panch witness 32 5 Ghanshyambhai Gulabbhai Patel Hostile Panch witness 38 6 Arjunbhai Chhaganbhai Pagi Hostile Panch witness 47 7 Mohammed Ikram Husen Jamtu Medical Officer who performed post mortem 48 8 Ajmalbhai Gopalbhai Pagi The brother of the Complainant 51 9 Gopalbhai Andabhai Pagi The Father of complainant 52 10 Chandubhai Laxmanbhai Patel Elder brother of the deceased 54 11 Nanduben Limbabhai Bamaniya, Police officer who registered the complaint 56 12 Arjunsinh Ratansinh Parmar, Investigating Officer who carried out the investigation 60 4.8 The prosecution has also produced the following pieces of documentary evidence:
Sr No. Description of document Exh.
1. Original complaint 26
2. Panchnama of seizure of clothes from the dead body 28
3. Inquest panchnama 31
4. Slips affixed on the muddamal 34 to 37
5. Panchnama of person of the accused and recovery of clothes of the accused 39
6. Panchnama of recovery of muddamal used in the offence 40
7. Slips affixed on the muddamal 41 to 46
8. Post mortem Note 49
9. Certificate of cause of death 50
10. Receipt of having handed over dead body 55
11. Yadi sent for carrying out post mortem 61
12. Report submitting therewith blood sample and other muddamal 62
13. Police Yadi 63 14 Post mortem form 64 15 Yadi for addition of section 323 of IPC 66 16 Police Yadi 67 17 Yadi written for preparing map 68 18 Muddamal dispatch Note 69 19 Copy of letter showing receipt of muddamal by F.S.L.
Letter of F.S.L.
Analysis report of F.S.L.
Copy of Serological Report 73 23 Copy of Notification of prohibition of arms 74 4.9 The learned Additional Sessions Judge, by the order impugned in this appeal found the appellants guilty and imposed the sentences as indicated earlier.
5. Being dissatisfied, the appellants have come up with the present appeal.
6. Mr.
H.L. Patel, the learned advocate appearing on behalf of the appellants, strenuously contended before us that the learned Sessions Judge committed substantial error in convicting the appellants for the offences in question by relying upon the evidence adduced by the complainant although it has been well established from the evidence on record that she was not at all present at the time of occurrence. Mr. Patel pointed out that the complainant in her evidence stated that the incident occurred at about 11.30 pm in the night in her presence and she herself made the complaint before the police by going to the police station at about 12.00 hrs. in the midnight, whereas it appears from the evidence on record that the police came to the place of occurrence on the next day at about 7.30 A.M. and thereafter, the complainant went to the police station by going there at about 8.30 A.M.
7. By referring to the aforesaid statement, Mr. Patel submitted that it is apparent that the sole eye-witness, i.e. the complainant, was not at all present at the time of the occurrence and in the next morning, she came to know about the death of her husband and after the visit of the police at the place of occurrence, she went to the police station and lodged the complaint. Mr. Patel contended that the complainant is wholly unreliable witness and it was unsafe to rely upon her evidence in convicting the accused persons. Mr. Patel pointed out that no other person has made any allegation of murder against his clients. Mr. Patel further contended that even the recovery of the knife could not be proved as the panch witnesses turned hostile and at the same time, even the complainant in her deposition could not clearly give description of the weapon allegedly used in the commission of the offence. Mr. Patel, therefore, prays for setting aside the order of conviction.
8. Mrs.
Krina Calla, the learned Additional Public Prosecutor, appearing on behalf of the State, has, on the other hand, opposed the aforesaid contention of Mr. Patel and has submitted that the learned Sessions Judge, on consideration of the evidence on record and the demeanor of the complainant and having believed her testimony, we should not interfere with such finding recorded by the learned Sessions Judge. Mrs. Calla, therefore, prays for dismissal of the above appeal.
9. Therefore, the only question that falls for our determination in this appeal is whether the learned Sessions Judge, in the facts of the present case, was justified in holding the appellants guilty and imposing the sentences as indicated earlier.
10. P.W.1, Lalitaben, the widow of the deceased, is the sole eye-witness examined by the prosecution. In her evidence, this witness has stated that on the day of the incident, she, her husband and her mother were present in her paternal house and at that time, there was a programme of Jayani at the house of her paternal uncle. Residential house of her paternal uncle was situated adjoining to their house and there were several persons present in the programme of Jayani. Two accused persons were also present there. According to this witness, Ajmal was her brother and in that programme, Ajmal felt the presence of the God in his body and he started shacking and swinging his head under the influence of the God and therefore, the accused persons doubted the assertion of her brother that the God had entered in his body. She further stated that the two accused persons were abruptly using abusive language and hence, the programme of Jayani was stopped and the accused persons were asked to leave the place. This witness further stated that both the accused persons left the place while using offensive language and as such, those persons who were present in the programme of Jayani went behind them and were searching them as both the accused had hidden themselves. According to the witness, her husband told her that as her father and brother had gone in search of the accused, they should also go to search her father and brother. This witness further stated that initially, she refused as she was not willing to be involved in this quarrel but her husband having pressurized her, she went with him. This witness stated that when both of them were going, the accused persons came, of which, Abhesing Vaja caught hold of her husband and Chiman Vaja inflicted blow of knife on her husband, as a result, her husband had fallen down on the ground. At that time, Abhesing told her to leave the place or otherwise they would also kill her. She, therefore, started shouting and on hearing her shouts, the people came there running. As her husband was injured, all were busy looking after him and at that time, the two accused persons ran away from the spot. The persons who had come there on hearing her shouts were preparing to take her husband to a hospital, but he died. According to P.W. 1, she had given her complaint of this incident to the police and thereafter, the police arrived and had initiated the procedure and the complaint that was shown to her in the witness-box is the one that she had given. When the muddamal article no.7 was shown to her, she stated that she felt in the darkness that it was something like knife. The muddamal article no.12 was shown to her, which had the design of crossing line, which according to her, her husband was wearing at the time of the incident. She also proved the sky blue coloured trouser that her husband was wearing. A banyan vest worn by her husband was also identified. She stated that she was unable to say the colour of the clothes which were worn by the accused persons at the time of the incident as it was a dark night.
11. In her cross-examination, this witness stated that she went to the police station for giving complaint on the night at about 11.00 A.M and had narrated her complaint and that complaint was written down and thereafter, she had put her thumb impression underneath that complaint at about 12.00 O'clock at night and at that time, her father and Badhar Mansing and Balvant Bhema etc. were present. In her cross-examination, she further stated that she was injured on account of falling down and her husband was injured with the weapon Gupti or something like a knife. She further stated that she was blood-strained on her body. She told the police that she had got blood during the clash, but the police did not seize her clothes. She further stated that at the time of Jayani, her brother had the incident of quarrel and that she was not present at that time as she, her mother, husband and her children were sleeping.
12. From the above evidence, we find that the sole eye-witness cannot be said to be reliable at all inasmuch as from the materials on record, it appears that the police really came in the next morning at about 7.30 A.M. and thereafter, complaint was lodged at about 8.30 A.M. It is also apparent that at the time of quarrel between her brother and the accused persons, she was not present as she, along with her husband was sleeping. No injury on her body was recorded nor were any clothes worn by her having bloodstains seized by the police. Therefore, the first part of her deposition that there was a quarrel between her brother and the accused persons was not witnessed by her and she heard it from others and regarding the second part of the incident that she and her husband went in search of the accused person is also not fitting with the story as she was sleeping at the time of the quarrel with her mother, husband and children as admitted in cross-examination. In our view, although a court can hold a person guilty on the basis of evidence given by the sole eye-witness, the law in such circumstances demands that such witness must be wholly reliable witness. But in the case before us, it appears that although complaint was lodged on the next day, she deliberately made a false statement that it was lodged at about 11.30 P.M. in the previous night by going to police station, whereas it appears from the complaint itself that the police arrived first at the spot in the next morning and thereafter, the complaint was lodged. Thus, the PW- 1 did not hesitate to turn a day into a night.
13. Jayantilal Kalidas Tailor, P.W. 2 is a panch witness of the panchnama of recovery of clothes of the dead body and he is not an important witness for holding the accused person as guilty.
14. Similarly, P.W. 3 Balvantsinh Bhurabhai Baraiya is another panch witness of the panchnama of place of occurrence. His evidence is also not relevant for deciding the involvement of the accused persons.
15. Mohanbhai Mulabhai Pagi, P.W. 4 is another panch witness who was declared hostile by the Prosecution.
16. Ghanshyambhai Gulabbhai Patel, P.W. 5, is another panch witness who denied that in the presence of panch witness, one person, named Chimanbhai Vaja, had brought one knife from his house and had produced and the same was taken into possession by the police and on this knife, bloodstains were found. He denied the suggestion that he was giving false evidence as he knew the accused person. This witness was also declared as hostile by the prosecution and the prosecution was permitted to cross-examine him.
17. Arjunbhai Chhaganbhai Pagi is P.W. 6. He was also panch witness of the panchnama of arrest of the accused person and seizure of their clothes, but he turned hostile and as such, the seizure of wearing apparel of the accused persons was not proved.
18. Mohammed Ikram, P.W. 7 is the medical officer who performed the post mortem of the dead body and proved the injuries appearing on the body of the deceased. Even the prosecution did not show him any knife for ascertaining his opinion whether by that weapon the injury inflicted to the deceased could be caused. Resultantly, the defence did not even feel the necessity of cross-examining him.
19. Ajmalbhai Gopalbhai Pagi is P.W. 8 who is the brother of the complainant and brother-in-law of the deceased. He described the incident of quarrel with the accused persons. In his cross-examination, he stated that he did not see the accused inflicting any injury and he also did not go behind the accused persons after the villagers had driven them away from the Jayani programme. He further stated in his deposition that his sister or brother-in-law, the deceased, did not come to the place where he was shaking his head under the influence of the God. From the aforesaid evidence, it is clear that P.W. 1 or the deceased never went to the place of the incident and were sleeping as admitted by the PW- 1 and as such, no question of going to search P.W. 8 and his father as stated by P.W. 1 in her evidence arose.
20. Gopalbhai Andabhai Pagi is P.W. 9 who is the father of the complainant. He has stated that he went to see Jayani programme and at that time, by the influence of the God, his son Ajmal started shaking his head which was disbelieved by the accused persons and there was a quarrel between the accused persons and the people of the locality and they had driven them out of the programme. As even after being driven away, those accused persons were using filthy language, about 8 to 10 persons who were present there asked them not to speak such filthy words. When these persons went away, he followed them and his son-in-law, the deceased and his daughter had come behind him and at that time, the accused persons attacked his son-in-law. We have already pointed out that according to P.W. 1, she and her husband were sleeping and according to Ajmal, neither his sister nor his brother-in-law went to the place of Jayani and thus, they could not know about the incident that had occurred. In his cross-examination, he stated that his daughter had shouted half an hour after the accused persons were driven away and they did not go behind the accused when they left the place. Thus, his version is inconsistent with the version of his daughter that as the father and brother of P.W. 1 were not coming back, she and her husband went in search of them.
21. Chandubhai Laxmanbhai Pagi is P.W.10 who is the elder brother of the deceased. He is not a witness of the incident and thus, he is not a material witness.
22. P.W.
11 Nanduben Limbabhai Bamaniya is a police official who was on duty at the police station, who proved exh. 28, the panchnama of the clothes in possession of the dead body and who in her cross-examination admitted that she had no personal information either with regard to the complaint or the clothes upon the dead body and that the blood samples were not taken in her presence.
23. Arjunsinh Ratansinh Parmar, P.W. 12, is the Investigating Officer who proved the investigation and in his cross-examination, he admitted that on the day of the incident, the complainant had not given any complaint at night, but it was written by going in the village. We have already pointed out that from the body of the complaint itself, it appears that the complaint was lodged on the next day at the place of the offence at 7.30 A.M. and thereafter, it was formally written in the police station.
24. On consideration of the above evidence, we agree with Mr. Patel, the learned advocate appearing in behalf of the appellants, that the prosecution had failed to prove the involvement of the two accused persons in the offence. We have also pointed out that neither recovery of knife from the accused persons was proved nor was any cogent evidence given from which the involvement of the accused persons can be established. The accused persons, in their statements under Section 313 of the Code of Criminal Procedure, had denied their involvement and have stated that due to enmity over the land dispute, they have been falsely implicated.
25. It appears from the record that the learned Sessions Judge committed a substantial error of law in not considering the evidence led by the prosecution in its proper perspective and holding the appellants guilty on the basis of the evidence given by PW- 1 who is wholly unreliable witness.
26. We, therefore, allow the appeal, set aside the order of conviction dated February 8, 2008 passed by the leaned Additional Sessions Judge, 4th Fast Track Court, Panchmahals at Godhra, in Sessions Case No. 16 of 2007 and direct the State-respondent to immediately release both the appellants, if they are not required in any other offence.
[BHASKAR BHATTACHARYA, CJ.] [J.B.PARDIWALA, J.] pirzada/-