(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. The appellant - State of Gujarat has challenged the judgment and order dated 30.10.1991 rendered in Sessions Case No.28 of 1991 by the learned Additional Sessions Judge, Junagadh, by which, the respondents – accused were acquitted from the charges levelled against them under Section 147, 148, 149 and 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act.
1.1 Respondent No.3 – original accused No.3 has expired during the pendency of appeal and therefore, appeal is abated against him.
2. The case of the prosecution before the trial Court is that; a complaint was lodged by one Jikabhai Kalabhai, PW 4, against the respondents alleging that all the respondents came at the place of incident, which is the house of deceased Meram Kala and attacked with deadly weapon. At that time, Kala Mulu, father of deceased Meram Kala, tried to save his son. The accused persons also attacked with the same deadly weapon on him and pursuant to the injuries, both of them died at the scene of offence.
3. The police officer of Junagadh Taluka Police Station investigated the crime and submitted the charge-sheet in the Court of learned Judicial Magistrate, First Class at Junagadh, who, in turn, committed the case to the Sessions Court for trial. The accused persons denied the charges levelled against them and requested for trial.
4. The prosecution examined as many as 17 witnesses and produced several documents including panchnama of scene of offence, discovery/recovery panchnama of weapons as well as postmortem note of the deceased persons. After considering the oral testimonies of different witnesses and after examining the documents, the trial Court came to the conclusion that the witnesses who posed themselves as eye- witnesses, which are not believable and version of these witnesses are doubtful and therefore, all the accused were acquitted from the charges levelled against them in the case. Hence, this appeal.
5. Heard learned advocates appearing for the respective parties.
6. The attack on the judgment by the learned APP Mr.
Kodekar is with regard to the reasoning part of the trial Court, by which, he has not accepted the oral testimonies of three eye-witnesses, who are close relatives of the deceased persons. He submitted that the prosecution has established his case beyond doubt by producing corroborative evidence like discovery of weapon, clothes, etc., which is supported by serological report of forensic science laboratory.
7. On the other hand, the learned advocates appearing on behalf of the respondents have supported the reasons assigned by the trial Court for acquittal and submitted that the trial Court has scrutinised the oral testimonies of the witnesses very closely, since they are relatives of the deceased and has rightly come to the conclusion that looking to the depositions of Jashuben – PW 5, Sundarben - PW 6, who is daughter of deceased Kala Mulu and another witness – Lakhuben - PW 7, widow of deceased Kala Mulu, they cannot be treated as eye-witnesses.
8. It was further argued that testimony of Jashuben, wife of deceased Meram Kala, PW 5, creates doubt since the place of incident, the panchnama of scene of offence, the place from which the dead bodies were found, do not corroborate each other and therefore, the trial Court has rightly not believed this witness.
9. We have gone through the record and proceedings and while considering the deposition of star witness Jashuben Merambhai, we found that as per her deposition, the incident took place near the place where, ordinarily, they kept their camels in front of courtyard. She, in her cross-examination, has further stated that after the first attack, her husband Meram fell near the place where ordinarily they are keeping their camels. It is her say that her husband was lying for five minutes at that place and thereafter, the deceased Meram was dragged by the accused persons. It is her say that her father- in-law, who was in the house, came out of the house when the accused persons started beating the deceased and at that time, all the accused persons attacked her father-in-law and he collapsed at that place only. Since she was afraid, she hide herself in her house and did not come out from her house till the entire incident was over. When she came out of the house, she found both the persons with lots of blood on their body.
9.1 Now, considering the scene of offence, Exh.15, no bloodstains are found near the place where the incident took place according to Jashuben i.e. the place where, ordinarily, the family was keeping their camels. There are no marks to suggest that any person was dragged from the said place to some other place. In fact, the dead bodies were found on the road located beyond the hedge in the back side of the house of the deceased. In her cross-examination, she has admitted that she could not see anything happening at the back side from her house. It is pertinent to note that the dead bodies were lying on a road between the house of deceased and house of two other persons viz., Shivgar Mohangar and Chhagan Dahya, which is the back side of the house of deceased. The blood samples collected from this place are of two different groups of the two deceased persons. Thus what witness Jashuben has deposed about having seen the accused attacking both the deceased cannot be accepted as truthful version of the event. According to her, the attack on both the victims was near the place where Camels were tied. Both the deceased had multiple bleeding injuries. According to Jashuben, her husband fell down there after the attack for about five minutes whereas her father-in-law collapsed there. But, no blood marks are seen there. It is nobody's case that father-in-law was taken away from that place and that he tried to go away. There is no evidence led by prosecution to explain as to how dead body of father-in-law went to the back portion of the house of the complainant. Likewise, the husband is claimed to have been dragged from the place of incident but no marks of dragging are found.
9.2 Considering the Inquest Panchnama and Panchnama of place of incident, it is possible that the incident may have taken place there. It is admitted by Jashuben that she could not have seen any occurrence behind the house.
9.3 Thus, the version of Jashuben as eye-witness cannot be accepted as truthful to connect the accused with the crime.
10. As far as other two witnesses viz., Sundarben and Lakhuben are concerned, it is an admitted position that they were residing in another house, which is at a distance of fifty feet from the place of incident. They have posed themselves as eye-witnesses, but, considering the cross-examination of these witnesses, it appears that they came at the place of incident after about 15 to 20 minutes and it also appears from their deposition that they are not clear about the place of incident.
11. Now, looking to the place of incident, which Jashuben suggests, does not appear to be the place since no bloodstains were found or no marks of dragging the deceased were visualised. Contrary to that, the blood samples were found of two deceased persons from some other place which is at the back side of the house as stated hereinabove. The prosecution has failed in establishing that how the dead bodies were found from the place which is not the one, which is narrated by Jashuben. Therefore, her presence at the place of incident as claimed by her creates doubt.
11.1 The map, Exh.20, showing the place of incident which is prepared as per panchnama of scene of offence (Exh.50) makes the entire occurrence of incident clear which indicates that neither Jashuben nor other witness Sundarben and Lakhuben can be accepted as eye-witness.
12. Since we have held that all these three important witnesses cannot be trusted as eye-witnesses, we have to consider other evidence on record which can be considered as circumstantial evidence. Now, bloodstains of deceased persons found on the clothes of the accused as well as weapon can be considered as one of the circumstances, but, in absence of other circumstances to complete the chain of circumstantial evidence.
13. It is pertinent to note that deceased Meram Kala and complainant - Jika Kala were accused in case of murder of one Laxmiben, who happens to be wife of deceased accused Koli Deva Vaja of that case. That incident took place prior to two years of the present incident. In that case, accused Nos.2 and 5 were eye-witnesses. In view of this factual aspect and prior enmity, possibility of the complainant falsely involving the accused persons in the present case cannot be ruled out.
14. In view of the reasons recorded hereinabove, we do not find any infirmity with the reasons assigned by the trial Court in acquitting the accused persons from the charges levelled against them and therefore, we dismiss this appeal.
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[A.L. Dave, J.] Sd/-
[A.J. Desai, J.] #MH Dave